Anyone who has ever been audited by the irs—no, let’s check that. Anyone who has ever lived in fear of being audited (now I’ve got everyone’s attention) knows well that there is more to the tax code than even its voluminous girth suggests. Still, would even the most cynical among us suppose that the code, in just one of its most promiscuous provisions, reflects the uniquely American history of left-wing hostility to free speech?
To be sure, the Columbia Law School scholar is better described as erudite than cynical. Professor Hamburger is best known in recent times for his deep dive into modern government’s sprawling, unaccountable fourth branch, Is Administrative Law Unlawful? (Spoiler: Yes!). But his oeuvre has long focused on another topic, similarly consequential to popular sovereignty in our constitutional republic: liberalism. Liberalism not just in the classical sense of being liberty-minded, but liberalism in the political connotation: the nigh-antithesis of liberty-mindedness, most familiar to contemporary Americans as progressivism (and, if I may interject, about as progressive as it is liberal).
In his latest offering, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech, Hamburger builds on the scholarship of his 2000 law review article, “Liberality,” which unfolds the phenomenon of liberalism as more attitude than ideology.
The unexpected but entirely apt framework for the story is a dryly worded, decades-old statute which, as is the Orwellian wont of the tax code, taketh away in the same breath as it giveth. Section 501(c)(3) permits an exemption from taxation to nonprofit business entities, referred to throughout the book as “idealistic” organizations to encapsulate their broad-ranging religious, cultural, educational, and social missions—organizations such as the one that publishes this magazine, for instance.
Here’s the catch: to qualify for the exemption, idealistic organizations must substantially refrain from lobbying for legislation or electioneering for candidates. That is, they must forfeit their core free-speech liberty, the right to political expression. Their exercise of the First Amendment is taxed by the government. (A cognate provision of the code, Section 170, applies the same suppressive caveat to the deduction for charitable contributions and gifts.)
The law has been in effect so long that the constitutional implications are rarely given a first, never mind a second, thought. The infringement, however, is clear and present. So how did we get here? In Hamburger’s richly supported telling, the explanation is “liberal anxieties.”
What made self-styled liberals most anxious was organized religion, especially Roman Catholicism. At least, in the early years of the republic; the full history is an object lesson in liberalism’s transgressive proclivity to push on every bourgeois norm until all orthodoxy is challenged. Inexorably, that is how it goes with a sentiment unbounded by the tenets of hoary belief systems.
We find the seeds in the founding era. Eighteenth-century “liberality,” Hamburger recounts, “tended to be portrayed as an elevated sentiment, of the free, open, and generous sort that might be expected of a gentleman—of a man unburdened by selfish interests or constricted ideas.” In America, where European gentility strictures were absent and the frontier beckoned, this mindset of transcending local nostrums and prejudices seeped into the Zeitgeist. The new nation needed a “liberal and energetic constitution,” Washington wrote Madison the year before the Philadelphia convention, in line with “the liberal way of thinking that is daily more and more predominant in the present age.”
While self-consciously enlightened, this stage of liberalism was not destructive. It strove for refinement, but took pride in the culture’s roots and traditions and was wary of pushing the envelopes too far. It observed the French Revolution and took careful note of its radicalism—liberalism run amok. The political urge was consequently sublimated into an ostensibly less threatening but, in fact, more potent theological liberalism.
Religious liberty in America is a story of competing imperatives, set in the First Amendment’s opening-line protections against ecclesiastical authoritarianism (the prohibition against “establishment” of religion) and in favor of worshipping as one chooses (the “free exercise” of religion). In small compass, Hamburger illustrates how this tension played out in the career of James Madison. As a younger man, he feared for religious liberty, proposing limits on government interference in Virginia fifteen years before proposing the Bill of Rights in 1791. By 1820, though, evidently seized by theological liberalism’s aversion to static, authoritative creeds, he was writing the so-called Detached Memoranda, expressing fear of ecclesiastical corporations.
The liberal struggle against orthodoxy is an overarching dynamic.
Of course, Christian denominations have always played a significant part in American political discourse, from debates over independence and the Revolution, through slavery and abolition, and on to civil rights and racial issues. By the lights of liberals, though, ecclesiastical ties led to blind doctrinal allegiance, vitiating the mental independence many Protestant sects deemed essential for faith and salvation. The ascendancy of theological liberalism has proved an enduring challenge to political expression by the faithful—and, as Section 501(c)(3) elucidates, a highly successful one.
The liberal struggle against orthodoxy is an overarching dynamic. The fallout is seen in the near-paling of inter-denominational rivalries in comparison to internal battles within faith traditions: conservatives seek to preserve their canons, while liberals, in the Unitarian mold of William Ellery Channing, rail at the “palsying” effect of doctrine and sect on the individual’s intellect.
In its hostility to Catholicism, theological liberalism aligned with nativism. As Hamburger elaborates, nativism was not merely a negative response to the influx of immigrant waves. It drew on the democratic idea of an American people exercising independent political judgment without the interference from foreign authorities, in Rome or elsewhere.
This idea of “Americanism”—and the often fierce debates over what it means to be an American (recall Barack Obama’s lectures about “our values” and “who we are”)—assumed greater significance as theological liberalism evolved into an even more ambitious cultural, economic, and political liberalism. Not just clerical authorities but all corporate concentrations of power were suspect. Nothing took precedence over the autonomy of the individual.
Paradoxically, this emphasis on individualism represses individuality. It is, after all, a yielding to “demands for a sort of theo-political conformity,” a fraying of the ties to diverse communities and associations. The traditional role of churches and civil society institutions was to provide the individual with sources of authority and solidarity independent of government. They were the shapers of public opinion. Yet, when liberalism takes hold, the conception of government transmogrifies from a potentially tyrannical force that must be constrained to an instrument for doing good and enforcing the public will.
Without mediating institutions, the relationship of consequence becomes that between the individual and the state. We have our equality, but as Alexis de Tocqueville insightfully recognized, people who are equally free because they have shorn class distinctions and other attachments are also weak in relation to the government. It is an egalitarian society that most needs idealistic associations, and that without them becomes vulnerable to a “soft populist tyranny” in which government dominates by its capacity both to regulate and to guide the direction of public ideas.
The stress on equality of the individual in our relations with a powerful government is of a piece with the sea change in our modern conception of the United States as a popular democracy. But our nation is not a democracy in the mob-rule sense; it is democratic, but it is first and foremost a republic whose government is founded on a constitution that safeguards individual liberty and, thus, the fundamental rights of minorities—which centrally include the right to associate and participate in political activism.
A democracy is far less interested in protecting those rights. Majorities are often hostile to expression that challenges the status quo. Indeed, those wielding power in a democracy conflate the status quo—the establishment and its pieties—with the notion of what it is to be an American. In the metamorphosis from burgeoning liberalism to nineteenth- and twentieth-century progressivism, the public school system reifies this transformation. Check your religion, your parochial ideas, and your eccentric associations at the door; become part of our enlightened sameness.
The First Amendment protects political speech, period.
The result of liberal anxieties about private associations was the promotion of the conceit that idealistic organizations, particularly faith-based ones, were obliged to cede their right to full participation in political life. To know their place, as it were. Tracing the philosophical musings of such twentieth-century progressive icons as Walter Lippmann, John Dewey, and John Rawls, Hamburger explicates the development of a political theory: it maintains that through independent-mindedness, blockaded from the purportedly enervating effects of ecclesiastical speech, citizens find their way—through the palpable virtues of liberalism—to “shared democratic commitments.”
Congress adopted this proposition, and the tax code has inculcated it for decades, with nary a peep of protest. It is, however, a blatant deviation from constitutional principle. The First Amendment prohibits laws abridging political speech, and there is no gainsaying that a tax on such speech has exactly that effect.
As Hamburger compellingly argues, counterclaims that enforcement is modest and does not entirely eradicate the speech rights of idealistic organizations are both wrong and ill-conceived. The irs strategically uses its power to inquire into the propriety of exemption claims. For many nonprofits, the imposition of tax liability would be the death knell, so the mere threat of enforcement suppresses their speech.
More to the point, the First Amendment protects political speech, period. The guarantee is not of a certain percentage of speech, or of speech that is only moderately burdened. Nor is it constitutional solace that government deigns to license watered-down versions of nonprofit speech through related tax code provisions, Section 501(c)(4) entities and Section 527 political action committees. Putting aside that these devices come with their own curbs on speech, Hamburger rightly observes that a pronouncement of church leaders through “irs-devised contraptions” can never be “as vigorous and empowering as the harmonized voices of the congregation itself.”
These are parlous times for liberty. If fundamental rights were merely under attack, that would be perilous but hardly unprecedented. The struggle to preserve freedom never ceases. The real threat, the one Philip Hamburger so discerningly captures by contextualizing an abstruse revenue law, is that we may have realized Tocqueville’s dystopian forecast: too infantilized by liberalism to see the stakes.
1 Liberal Suppression: Section 501(c)(3) and the Taxation of Speech, by Philip Hamburger; University of Chicago Press, 432 pages, $55.
This article originally appeared in The New Criterion, Volume 37 Number 2, on page 59
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