There’s No Such Thing as a Free Speech

Review: 'Liberal Suppression: Section 501(c)(3) and the Taxation of Speech' by Philip Hamburger

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As 2018 gutters out, sputtering down to its dim end, it might be worth looking back at one of the few genuinely new lights of the past year—the Columbia University law professor Philip Hamburger'underappreciated Liberal SuppressionSection 501(c)(3) and the Taxation of Speech

Perhaps the book received less attention than it deserved because of its subtitle, there being a general rule in the publishing world that books with parenthesed paragraph numbers of IRS code in their name aren't destined for wide notice. Call a book Trojan Horses, and you might do all right. Add the subtitle 26 CFR 20.7520-3 and the Taxation of Gifts, and you're headed for the remainder bin.

But Philip Hamburger has always gone his own way, and in Liberal Suppression he intends what his subtitle asserts: The constitutional idea of free speech has weakened over the past century, and one of the most powerful devices diminishing freedom of speech is the treatment of nonprofit organizations in the tax code.

"Many billions of dollars" are contributed annually to nonprofits, Hamburger points out. And Section 501(c)(3) prohibits those nonprofits from lobbying directly for legislation or urging the public to vote for or against any particular candidate or ballot measure. Meanwhile, Section 170(c) gives the organizations that qualify under 501(c)(3) a competitive advantage by designating as tax-deductible the donations made to them.

This is, Hamburger declares, "an extraordinary abridgement" of what early generations of Americans would have understood as freedom of speech, which was centered around freedom of political speech. What's more, it came from the kind of liberalism characteristic of the 20th century. The tax code laid down its current limitations on nonprofits in 1934, with regulations tightened in 1954 and again in 1987. At each point, the most high-minded liberalism of the day was working—consciously or unconsciously—to constrain the messiness of American democratic politics caused particularly by the involvement of religion. And even more particularly, the messiness of American politics caused by the Catholic Church.

At this point, Hamburger is probably right to feel the need to ask readers to "hold their skepticism." The 18 chapters in Liberal Suppression are organized around themes ("Distortions of Constitutional Doctrine," for example, or "Government Interests"), which makes Hamburger's chronology less clear than it could be. Worse, it pushes him into repetition when a later chapter touches on an earlier point. But once the reader places Liberal Suppression in the context of Philip Hamburger's other work, the importance of this new volume comes clear. 

So, in his foundational 2002 book, Separation of Church and State, Hamburger laid out the history of America's religious jurisprudence as an ideological progression, created in large part by the courts: We started with the colonial idea of disestablishment, with the federal government prohibited from naming a national church, and we moved to the modern idea of disassociation, with all government prohibited from religious entanglements, as religion is pushed into the private sphere. (You can see the process at work when, for example, a politician advocates "freedom of belief," a private matter, instead of "freedom of religion," which occurs in public.)

What Hamburger reminded us in Separation of Church and State is how much of American religious jurisprudence was driven by concern about Catholicism. For every decision involving plaintiffs from nonmagisterial Protestant sectsQuakers or Jehovah's Witnesses or Christian Scientiststhe Supreme Court has issued several others involving Catholics. With the high liberalism of the 20th centuries emerging as a kind of gestural Protestantism, a nondoctrinal Mainline, judges increasingly felt the need to banish other confessions from the public square.

In his 2008 Law and Judicial Duty, Hamburger took up the curious liberal presumption of the dissociation from personal beliefs that American jurisprudence requires of judges when they take on their ever-increasing role of judicial review. And then, in 2014, Hamburger gave us Is Administrative Law Lawful?, which he followed up with an even-more pointed 2017 book called The Administrative Threat. In these works, he argued that the power of administrative agencies "sidesteps most of the Constitution's procedural freedoms." America has created "a state within a state" that is now the "preeminent threat to civil liberties."

The way to read Hamburger's Liberal SuppressionSection 501(c)(3) and the Taxation of Speech is as a case study, a particular application, of his theories about religion, liberalism, and administrative power in American law.

Two forces pushed against Catholicism in America through the 19th and 20th centuries. The first is the nativist line that would find its zenith, or perhaps its nadir, in the Ku Klux Klan's anti-Catholic campaigns. And the second is the high liberal line that would see Catholics as a backward force, a retarding power, in the advance toward modern scientific enlightenment. In Liberal Suppression, Hamburger reminds us again that these two lines are woven together more tightly than we might like to think. And the definition of "idealistic organizations" in the tax code proves no exception. 

Thus, for example, in the 1954 Senate campaign, Lyndon Johnson faced a Catholic in Texas who was supported by Catholic organizations (and defended by anti-anti-Catholic organizations). Johnson complained to the IRS, which replied on July 1 that the organizations had not violated Section 501(c)(3). And so, "on July 2, Johnson proposed an amendment" to the section, increasing the power of the IRS to ban political speech.

"Liberalism" is a somewhat specialized word in Hamburger's work. I wish he had a stronger statement of its continuing Protestant nature, but he sees clearly its growth out of a nondenominational impulse in the Mainline churches. And unable to see itself as essentially a religious view, liberalism came to believe that it was uniquely above the clash of orthodoxies. The "theologically liberal stance against the Catholic Church," Hamburger writes, "thereby became a series of demands for a sort of theo-political conformity." And so, decades later, the IRS was set free to demand information on whether or not idealistic organizations are properly idealistic. With the tax structure now so strongly in place, even the threat of removing tax exemptions causes nonprofits to shy away from the kind of public speech that would help maintain them as the Tocquevillian mediating institutions they should be.

Moreover, in Hamburger's view, the Constitution guarantees these mediating institutions the robust freedom of speech that the tax code takes away from them. That's a tough row to hoe, given that the Supreme Court has unanimously upheld Section 501(c)(3). But Liberal Suppression is willing to do the work, demanding that we see the constitutional infirmity in this particular example of the power and impact of the administrative state. And Philip Hamburger is willing to accept the burden of seeming eccentric, outside the mainstream of soft legal thought. Which is, of course, what makes him so vital a thinker. An American original.

Joseph Bottum

Joseph Bottum   Email | Full Bio | RSS
Joseph Bottum is a professor of cyber-ethics and director of the Classics Institute at Dakota State University. His most recent book is An Anxious Age: The Post-Protestant Ethic and the Spirit of America.

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