Lead Opinion
delivered the opinion of the Court.
Appellee Taxation With Representation of Washington (TWR) is a nonprofit corporation organized to promote what it conceives to be the “public interest” in the area of federal
TWR then brought this suit in District Court against the appellants, the Commissioner of Internal Revenue, the Secretary of the Treasury, and the United States, seeking a declaratory judgment that it qualifies for the exemption granted by § 501(c)(3). It claimed the prohibition against substantial lobbying is unconstitutional under the First Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.
TWR was formed to take over the opеrations of two other nonprofit corporations. One, Taxation With Representation Fund, was organized to promote TWR’s goals by publishing a journal and engaging in litigation; it had tax-exempt status under § 501(c)(3). The other, Taxation With Representation, attempted to promote the same goals by influencing legislation; it liad tax-exempt status under § 501(c)(4).
In these cases, TWR is attacking the prohibition against substantial lobbying in § 501(c)(3) because it wants to use tax-
Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a сash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual’s contributions.
It appears that TWR could still qualify for a tax exemption under § 501(c)(4). It also appears that TWR can obtain tax-deductible contributions for its nonlobbying activity by returning to the dual structure it used in the past, with a § 501(c)(3) organization for nonlobbying activities and a § 501(c)(4) organization for lobbying. TWR would, of course, have to ensure that the § 501(c)(3) organizаtion did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.
TWR is certainly correct when it states that we have held that the government may not deny a benefit to a person because he exercises a сonstitutional right. See Perry v. Sindermann,
TWR also contends that the equal protection component of the Fifth Amendment renders the prohibition against substantial lobbying invalid. TWR points out that § 170(c)(3) permits taxpayers to deduct contributions to veterans’ organizations that qualify for tax exemption under §501(c)(19). Qualifying veterans’ organizations are permitted to lobby as much as they want in furtherance of their exempt purposes.
Generally, statutory classifications are valid if they bear a rational relation to a legitimate governmental purpose. Statutes are subjected to a higher level of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech, or employ a suspect classification, such as race. E. g., Harris v. McRae,
“The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized .... [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom.in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot hаve, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is*548 on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Madden v. Kentucky,309 U. S. 83 , 87-88 (1940) (footnotes omitted).
See also San Antonio Independent School District v. Rodriguez,
We have already explained why we conclude that Congress has not violated TWR’s First Amendment rights by declining to subsidize its First Amendment activities. The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to “ ‘ai[m] at the suppression of dangerous ideas.’” Cammarano, supra, at 513, quoting Speiser,
The Court of Appeals nonetheless held that “strict scrutiny” is required because the statute “affect[s] First Amendment rights on a discriminatory basis.” 219 U. S. App. D. C., at 130,
Congressional selection of particular entities or persons for entitlement to this sort of largesse “is obviously a matter of policy and discretion not open to judicial review unless in circumstances which here we are not able to find. United States v. Realty Co., [
These are scarcely novel principles. We have held in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny. Buckley v. Valeo,
The reasoning of these decisions is simple: “although government may not place obstacles in the path of a [person’s] exercise of. . . freedom of [speech], it need not remove those
We have no doubt but that this stаtute is within Congress’ broad power in this area. TWR contends that § 501(c)(3) organizations could better advance their charitable purposes if they were permitted to engage in substantial lobbying. This may well be true. But Congress — not TWR or this Court — has the authority to determine whether the advantage the public would receive from additional lobbying by charities is worth the money the public would pay to subsidize that lobbying, and other disadvantages that might accompany that lobbying. It аppears that Congress was concerned that exempt organizations might use tax-deductible contributions to lobby to promote the private interests of their members. See 78 Cong. Rec. 5861 (1934) (remarks of Sen. Reed); id., at 5959 (remarks of Sen. La Follette). It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying.
It is also not irrational for Congrеss to decide that, even though it will not subsidize substantial lobbying by charities generally, it -will subsidize lobbying by veterans’ organizations. Veterans have “been obliged to drop their own affairs to take up the burdens of the nation,” Boone v. Lightner, 319
The issue in these cases is not whether TWR must be permitted to lobby, but whether Congress is required to provide it with public money with which to lobby. For the reasons stated above, we hold that it is not. Accordingly, the judgment of the Court of Appeals is
Reversed.
Notes
Section § 501(c)(3) grants exemption to:
“Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing fоr public safety, literary, or educational purposes, or to foster national or international amateur sports competition ... , or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation (except as оtherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office” (emphasis supplied).
The Due Process Clause imposes on the Federal Government requirements comparable to those that the Equal Protection Clause of the Fourteenth Amendment imposes on the States. E. g., Schweiker v. Wilson,
Appellants contеnd that we lack jurisdiction of the cross-appeal because 28 U. S. C. § 1252 refers only to appeals, and this Court’s Rule 12.4 only establishes a procedure for taking a cross-appeal. Section 1252 provides:
“Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action ... to which the United States or any of its agencies ... is a party” (emphasis supplied). This language is broad enough to encompass appellee’s cross-appeal. We hold that it does. Therefore, we deny the appellants’ motion to dismiss, and decide the cross-appeal together with the appeal.
Unless otherwise indicated, all citations to statutes in this opinion refer to the Internal Revenue Code, 26 U. S. C.
Section 501(c)(4) grants exemption to:
“Civic leagues or organizations not organized for prоfit but operated exclusively for the promotion of social welfare, . . . and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.”
In stating that exemptions and deductions, on the one hand, are like cash subsidies, on the other, we of course do not mean to assert that they are in all respects identical. See, e. g., Walz v. Tax Comm’n,
TWR and some amici are concerned that the IRS may imposе stringent requirements that are unrelated to the congressional purpose of ensuring that no tax-deductible contributions are used to pay for substantial lobbying, and effectively make it impossible for a § 501(c)(3) organization to
We also note that TWR did not bring this suit because it was unable to operate with the dual structure and seeks a less stringent set of bookkeeping requirements. Rather, TWR seeks to force Congress to subsidize its lobbying activity. See Tr. of Oral Arg. 37-39.
Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley,
TWR contends that Congress has overruled Cammarano by enacting § 162(e), which permits businesses to deduct certain lobbying expenses that are “ordinary and necessary [business] expenses.” See Brief for Ap-pellee 13. It is elementary that Congress’ decision to permit deductions does not affect this Court’s holding that refusing to permit them does not violate the Constitution.
The rules governing deductibility of contributions to veterans’ organizations are not the same as the analogous rules for § 501(c)(3) organizations. For example, an individual may generally deduct up to 50% of his adjusted gross income in contributions to § 501(c)(3) organizations, but only 20% in contributions to veterans’ organizations. Compare § 170(b)(1)(A) with § 170(b)(1)(B). Taxpayers are permitted to carry over excess contributions to § 501(c)(3) organizations, but not veterans’ organizations, to
See, e. g., Personnel Administrator of Mass. v. Feeney,
Concurrence Opinion
with whom Justice Brennan and Justice Marshall join, concurring.
I join the Court’s opinion. Because 26 U. S. C. § 501’s discrimination between veterans’ organizations and charitable organizations is not based on the content of their speech, ante, at 548, I agree with the Court that § 501 does not deny charitable organizations equal protection of the law. The benefit provided to veterans’ organizations is rationally based on the Nation’s time-honored policy of “compensating veterans for their past contributions.” Ante, this page. As the Court says, ante, at 548 and 550, a statute designed to discourage the expression of particular views would present a very different question.
I also agree that the First Amendment does not require the Government to subsidize protected activity, ante, at 546,
If viewed in isolation, the lobbying restriction contained in § 501(c)(3) violates the principle, reaffirmed today, ante, at 545, “that the government may not deny a benefit to a person because he exercises a constitutional right.” Section 501(c)(3) does not merely deny a subsidy for lobbying activities, see Cammarano v. United States,
The constitutional defect that would inhere in § 501(c)(3) alone is avoided by § 501(c)(4). As the Court notes, ante, at 544, TWR may use its present § 501(c)(3) organization for its nonlobbying activities and may create a § 501(c)(4) affiliate to pursue its charitable goals through lobbying.
Given this relationship between § 501(c)(3) and § 501(c)(4), the Court finds that Congress’ purpose in imposing the lobbying restriction was merely to ensure that “nо tax-deductible contributions are used to pay for substantial lobbying.” Ante, at 544, n. 6; see ante, at 545. Consistent with that purpose, “[t]he IRS apparently requires only that the two groups be separately incorporated and keep records adequate to show that tax-deductible contributions are not used to pay for lobbying.” Ante, at 545, n. 6. As long as the IRS goes no further than this, we perhaps can safely say that “[t]he Code does not deny TWR the right to receive deductible contributions tо support its nonlobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby.” Ante, at 545. A § 501(c)(3) organization’s right to speak is not infringed, because it is free to make known its views on legislation through its § 501(c)(4) affiliate without losing tax benefits for its nonlobbying activities.
Any significant restriction on this channel of communication, however, would negate the saving effect of § 501(c)(4). It must be remembered that § 501(c)(3) organizations retain their constitutional right to spеak and to petition the Government. Should the IRS attempt to limit the control these organizations exercise over the lobbying of their § 501(c)(4) affiliates, the First Amendment problems would be insurmountable. It hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him. Similarly, an attempt to prevent § 501(c)(4) organizations from lobbying explicitly on behalf of their § 501(c)(3) affiliates would pеrpetuate § 501(c)(3) organizations’ inability to make known their views on legislation without incurring the unconstitutional penalty. Such restrictions would extend far beyond Congress’ mere refusal to subsidize lobbying. See ante, at 544-545, n. 6. In my view,
I must assume that the IRS will continue to administer §§ 501(c)(3) and 501(c)(4) in keeping with Congress’ limited purpose and with the IRS’s duty to respect and uphold the Constitution. I therefore agree with the Court that the First Amendment questions in these cases are controlled by Cammarano v. United States,
See Speiser v. Randall,