Bishop Tobin and Barry Linn

Father Araujo’s brief comments on Barry Linn and Bishop Tobin could be fleshed out wholly apart from the merits (or not) of Bishop Tobin's position. Bishop Tobin criticized Giuliani’s view that abortion should not be illegal in a diocesan newspaper and said that he would never support a candidate who took that position.  http://www.au.org/site/News2?abbr=pr&page=NewsArticle&id=9193&security=1002&news_iv_ctrl=1241. The diocese is a 501 c3 organization. Under federal law, such organizations can neither support nor oppose candidates for public office. Father Araujo says that the Bishop acted properly and that his speech was an exercise of his religious liberty. I am not clear whether Father Araujo thought the Bishop’s action was in harmony with federal law. If so, I just disagree. The more interesting question is whether the federal law is itself constitutional. If it is unconstitutional, is it unconstitutional because it violates free speech (on that theory it would be unconstitutional as applied to non-religious organizations), freedom of religion, or both? 

 As I recall, Rick Garnett has taken the position that the restrictions of 501 c3 violate free speech and I tend to agree, but it is not obvious that government must subsidize those charities that engage in partisan politics if it is to subsidize charities at all. Moreover, it is possible to create separate organizations under the tax code in a manner that makes the restriction have little bite. Nonetheless, I think the spectre of government bribing leaders of religious organizations to stay out of politics (the effect of 501c3) even when their conscience dictates otherwise is quite problematic.