A Conversation with Notre Dame Law School’s Lloyd Hitoshi Mayer (Part 2 of 2)
Michael E. Hartmann
The scholar of nonprofit and election law talks to Michael E. Hartmann about past and potential future cross-ideological overlap in the critique of establishment philanthropy, non-exempt vehicles for wealthy givers, and the roles and capabilities of the IRS and the FEC.
Professor Lloyd Hitoshi Mayer has researched, studied, taught, and written about many various aspects of nonprofit and election law since he came to Notre Dame Law School 17 years ago from the Washington, D.C., office of Caplin & Drysdale, where he’d practiced in those same areas for almost a decade.
Mayer’s recent published scholarship, for example, has thoroughly examined charitable crowdfunding, when tax exemption should and shouldn’t be considered a subsidy, fundamental public policy and the tax exemption of churches, and government use of “Big Data” in nonprofit regulation, among other things. His thoughtful “When Soft Law Meets Hard Politics: Taming the Wild West of Nonprofit Political Involvement,” in Notre Dame’s Journal of Legislation, caught our attention in particular and likely will inform policymaking discourse in the coming years.
The engagingly good-natured Mayer was kind enough to join me for a conversation last week. In the first of two parts of our discussion, which is here, we talk about what should and shouldn’t be considered a subsidy for charities, and the relationships between charity, politics, and government.
In the second part—the just more than 15-and-a-half-minute video below—we talk about past and potential future cross-ideological overlap in the critique of establishment philanthropy, non-exempt vehicles for wealthy givers, and the roles and capabilities of the Internal Revenue Service (IRS) and the Federal Election Commission (FEC).
Asked whether we could perhaps see cross-ideological overlap in the critique of philanthropy in the coming years, Mayer answers,
We certainly could. … Private foundations, over 50 years ago, were in the crosshairs of exactly that sort of alliance of concerns that wealthy individuals, oligarchs, through primarily private foundations were influencing politics, among other things, and doing other things that were of concern to Congress. That eventually led to much-tighter restrictions applied to foundations in terms of what they can do, particularly when it comes to politics, tighter than charities generally face under the Internal Revenue Code. So we could see that again.
He notes that “a lot of charities want to stay out of” politics anyway. “The tax rules are actually convenient for them. They can say to someone, some big donor that says I want you to really get involved” in politics, that “tax law says I can’t. It gives them a way of saying no.”
As for any potential future policy reforms related to this area, “I don’t think it’s the tax code’s or the IRS’s job to tame the ‘political Wild West’ of non-profit involvement,” Mayer says. “That really is something that Congress and the states need to think about doing through their election laws and election administration. … Don’t put the IRS in that position. … Do it through the election laws, do it through the election agencies, and have a trigger based on activity.”
This article originally appeared in the Giving Review on February 15, 2022.