For Charities, partisanship could be dangerous sailing.

• Author: Broder, Peter

In the debate over the role of charities in the public policy process it is sometimes suggested that there ought to be no constraints on what political activity groups are allowed to undertake. Occasionally, commentators even assert charities should be allowed to participate in party politics.

Among the less remarked of Donald Trump's comments during the two weeks after he assumed office was his announced intention to remove the constraints on U.S. churches engaging in politics. Under what's known as the Johnson Amendment in the U.S. Tax Code, certain American non-profit organizations (effectively the equivalent of Canadian registered charities) are prohibited from endorsing or opposing political candidates. The newly-elected U.S. President said he would "totally destroy" the Johnson Amendment.

Although there has been a long history of charities being involved in issues that overlap with electoral politics (abolition of slavery, temperance, universal suffrage, to name a few), under the common law, groups constituted primarily for a political purpose cannot be charities. This position comes through a line of cases beginning with the British House of Lords' judgment in Bowman v. Secular Society. It was explicitly stated by Justice Slade in another leading case, McGovern v. Attorney General. Justice Slade included trusts "to further the interests of a particular political party" in his list of trusts for political purposes that are disqualified from being charities.

While what is considered a political purpose is regularly contested through the courts and through other regulatory processes, the impermissibility of engaging in partisan politics has rarely been challenged.

The U.S. regulatory regime for charities resembles the common law system used in the United Kingdom and a host of other countries (including Canada), but features some aspects that reinforce or deviate from the traditional system. These stem from U.S. Constitutional law or the country's complicated legislative processes. In this case, the Johnson Amendment buttresses the existing common law rule. Separation of church and state is also, of course, a well-established tradition in U.S. law.

In Canada, partisan activity is explicitly excluded from Sections 149.1 (6.1) and (6.2.) of the Income Tax Act, which deal with regulation of political activity by registered charities.

At almost the same time as the President's comments were made, the Australian Charities and Not-for-profits...