By Matt Corley
January 12, 2017

This story has been updated with comment from the Alliance Defending Freedom

The Alliance Defending Freedom (ADF), a Christian-based legal group known for leading efforts to restrict LGBT rights, is organized as a section 501(c)(3) charitable organization, meaning both that it is tax-exempt and that contributions to it are tax-deductible. Charities like ADF, however, are not allowed to intervene in political campaigns, including by contributing money to political organizations.

It appears ADF did just that, however, right before Election Day. According to a document filed with the Internal Revenue Service (IRS), ADF gave $200 to the Republican Attorneys General Association (RAGA), a section 527 political organization dedicated to “electing Republicans to the Office of State Attorney General.” State Attorneys General are generally the top law enforcement official in their states and, particularly in recent years, they often initiate and participate in multi-state lawsuits that seek to impact nationwide policy.

The filing, submitted by RAGA, suggests that ADF could also have given an additional $25,000 to RAGA, though it is unclear if that is an error on RAGA’s part. In the report, known as a Form 8872, ADF is listed as contributing $200 on November 1. A separate part of the listing says ADF contributed an aggregate of $25,200 to the group in 2016:

 

ADF RAGA Contribution

RAGA’s IRS filings, however, did not separately disclose the additional $25,000 contribution, leaving it unclear if the money was actually given.

As CREW noted in its IRS complaint against the Donald J. Trump Foundation for its $25,000 contribution to a political organization associated with Florida Attorney General Pam Bondi, the statutory prohibition against public charities participating or intervening in any political campaign on behalf of or in opposition to any candidate for public office is absolute — a political intervention does not need to be a substantial part of the organization’s activity. Violations of the prohibition can result in revocation of tax-exempt status and the imposition of excise and other taxes. The Trump Foundation, for instance, paid a $2,500 excise tax after CREW filed its complaint.

By that measure, ADF’s $200 contribution appears to technically violate the statue. But it’s a very small amount of money that likely covers something minor like the cost to attend an event. It would be a much more serious matter if the organization did in fact contribute the additional $25,000, which could have been used to support RAGA’s election-oriented advertising or the group’s contributions to candidates, parties, and political action committees.

RAGA was deeply involved in efforts to get Republicans elected to office throughout 2016. In 2016, the organization spent more than $7.5 million on media buys, mostly targeting West Virginia’s attorney general race, and contributed more than $4 million to explicitly political entities, including the campaigns of Curtis Hill in Indiana and Sean Reyes in Utah.

Though ADF is barred from engaging in electoral politics due its tax-exempt status, the organization has been pushing for years to change the rules prohibiting charities from intervening in elections. As CREW Executive Director Noah Bookbinder noted last October, since at least 2008, ADF has encouraged pastors across the country to talk electoral politics in church as part of a deliberate effort to draw scrutiny from the IRS so that ADF can launch a constitutional challenge to the law, known as the Johnson Amendment, that makes it illegal for non-profit charities to participate in elections.

If ADF were successful, not only would the group’s contribution to RAGA be legal, but the money in politics landscape in America would be drastically changed. Millionaires and billionaires would be empowered to inject more money into the political system with even less accountability. Such a change would almost certainly lead to a new flood of dark money campaign spending by groups that don’t disclose their donors.

ADF recently supported more targeted legislation that would allow charities to make political statements “in the ordinary course of the organization’s regular and customary activities” as long as the related expenditures are de minimis. But the election of Donald Trump may embolden the organization to push forward with efforts to fully repeal the Johnson Amendment.

On the campaign trail, President-elect Trump appealed to conservative Christians by vowing to repeal the Johnson Amendment, going so far as to reportedly tell his evangelical advisory council that “the only way I’m going to get to heaven is by repealing the Johnson Amendment.” In a video to supporters, outgoing ADF President Alan Sears called President-elect Trump’s win “an amazing result” that offers a tremendous “opportunity” for the group to push its agenda, though he did not mention the Johnson Amendment.

If the Trump administration does make an effort to repeal the Johnson Amendment, and is successful, ADF could make additional contributions to political organizations without running afoul of the law.

Update:

After the publishing of this blog post, Greg Scott, the vice president of communications for ADF, contacted CREW to explain the contribution information reported to the IRS by RAGA. Mr. Scott said ADF did not contribute $25,000 to RAGA, but did contribute $25,000 to the Rule of Law Defense Fund (RLDF), a section 501(c)(4) organization affiliated with RAGA. Charities like ADF are legally permitted to contribute to social welfare non-profits like RLDF.  Here is what Mr. Scott told CREW:

The answer is “no.”

First, the $200 was a registration fee for the RAGA event in November.

Second, the $25,000 was to the Rule of Law Defense Fund (purposes described below). Not RAGA. And not for electoral activity.

The payment to RLDF was accompanied by a letter, the body of which reads as follows:

Enclosed is a $25,000 contribution from Alliance Defending Freedom (ADF) to the Rule of Law Defense Fund (RLDF), which we understand is at the “Attorneys General Roundtable” membership level.

As you might know, ADF is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.  ADF’s work includes training law students through the Blackstone Legal Fellowship, training practicing attorneys, providing grant funding for litigation, and educating the public on our core issues.  We share your interest in protecting the rule of law and look forward to being an active member of your organization, including through member opportunities to attend national and regional meetings, participate in roundtable events with state attorneys general, and submit issue briefing topics.

As ADF is a 501(c)(3) non-profit organization, all funds in the enclosed contribution must be used consistent with activity eligible for recognition as being in the public interest pursuant to I.R.C. 501(c)(3).

We are not sure how RAGA does their reporting for Form 8872 and why the ADF sum is included there.