Pastors & Politics Why is the IRS letting tax-exempt churches play politics?

Speaking to his congregation at Fairview Baptist Church in Edmond, Oklahoma, in September, Pastor Paul Blair proclaimed himself a “God-fearing Oklahoman” and a “patriotic American.” As such, he said, “I will be casting my ballot for Representative Mary Fallin for governor.” Blair also is founder and director of Reclaiming Oklahoma For Christ. In that capacity, he sent an email urging recipients to attend a political rally for zealously anti-gay Oklahoma state Rep. Sally Kern, who was facing opposition from a transgender candidate Blair claimed was “recruited” by “the homosexual lobby.” Fallin and Kern easily won their respective races in November.

Blair is one of dozens of pastors on the religious right who are increasingly flouting a longstanding Internal Revenue Service regulation that bars 501(c)(3) nonprofit, tax-exempt organizations from intervening in political campaigns. This includes endorsing or opposing candidates for public office. Violating this section of the tax code can result in revocation of an organization’s tax-exempt status and financial penalties. Yet the IRS—while well aware of this activity—has done little to stop it, and the churches of Blair and others who have brazenly violated the IRS rule continue to be tax exempt.

Some on the far right portray the IRS restrictions as discriminating against churches. They’re not. The limits apply to all 501(c)(3) nonprofits. In 2004 the IRS reports it reviewed 110 referrals on possible prohibited political activity by such tax-exempt organizations. Of them, sixty-three, or 57 percent, were not houses of worship. In 2006 the IRS looked into 100 complaints, with fifty-six, or 56 percent of them, being non-churches. So as a practical matter, those clergy who challenge the IRS regulation are seeking preferential treatment not given to other tax-exempt nonprofits.

“They never talk about removing this restriction from all charities. They only talk about removing it from churches,” says Barry Lynn, an ordained minister and lawyer who serves as executive director of the non-partisan Americans United for Separation of Church and State. It’s a tax-exempt nonprofit bound by the same IRS curb on politicking as churches.

Emboldened by the indifference or inertia of the IRS, evangelical leaders are becoming more aggressive in mixing politics with prayer. They are daring the IRS to sanction them, insisting that to do so is an unconstitutional muzzling of their First Amendment rights. On a designated Sunday in September 2010, as many as 100 pastors preached politics from the pulpit, openly defying the IRS regulation. Indeed, some of them sent audiotapes, videotapes, or copies of their sermons to the IRS. In 2009 eighty-three pastors did this, up from about thirty-three who participated in 2008, says the Alliance Defense Fund, which has organized these annual “Pulpit Freedom” events.

Survey results released in October by the Pew Research Center for the People & the Press confirm that members of the clergy are indeed actively politicking their parishioners. Some 15 percent of the respondents said political information was made available at their place of worship, and 5 percent said they were urged by clergy or other religious groups to vote a certain way. (Some political activity, such as urging the congregation to vote, is permitted at houses of worship as long as it isn’t partisan. And clergy can preach about volatile social issues such as abortion and homosexuality as long as they don’t endorse or condemn a candidate’s views on those subjects).

The IRS created the Political Activity Compliance Initiative in 2004, ostensibly to crack down on political activity by pastors and churches. While the agency sometimes sent written advisories to rogue churches in the 2004 and 2006 election years, it didn’t revoke or propose revoking the tax-exempt status of a single one, according to its own records for those years.

The IRS did not respond to verbal or written requests from the Humanist to explain its tepid response to politicking pastors. The agency confines its limited enforcement resources to those cases in which it has a chance to collect hefty excise taxes from wayward churches, says Robert W. Tuttle, a George Washington University law professor who also holds a doctorate degree in religious ethics. Lynn says the IRS has been especially inactive since early 2009 in pursuing offending clergy while it works to tweak the applicable language in the tax code.

The far-right lawyer group, the Alliance Defense Fund, has been the driving force behind these pastor protests. Based in Scottsdale, Arizona, the alliance is anti-abortion and opposed to same-sex marriage and boasts of having “more than thirty-five full-time Christian attorneys.” The organization did not respond to a request for comment, but has made no secret of the fact that it’s itching for a court fight—all the way to the U.S. Supreme Court, if necessary. “I think it’s almost entirely about getting a case,” Tuttle says. “It continues to be an interesting legal problem. I just think they’re wrong. This is part of the culture wars, and people do it regardless of whether there are good legal arguments.

“They’re not exempt because of some constitutional right,” Tuttle says, because tax exemption isn’t addressed in the Constitution. Allowing pastors to make political pronouncements while their churches retain their tax-exempt status amounts to a government subsidy of political speech, he adds. While individual contributions to political campaigns aren’t tax exempt, they could essentially become so by funneling them through a church with a pastor who has a penchant for political proselytizing, he says.

The Alliance Defense Fund isn’t alone in urging pastors to defy the IRS code. Some speakers at a three-day conference of far-right political and religious adherents in Miami last September urged clergy to ignore the IRS regulation. One of them, Robert Knight of the Coral Ridge Ministries megachurch in Fort Lauderdale, told his audience that the IRS rule restricting political activity is a “paper tiger” and a “house of cards.”

The IRS provision in dispute is hardly new. Congress approved a tax code amendment by Sen. Lyndon Johnson in 1954 prohibiting tax-exempt organizations from engaging in certain forms of political activity. (Congress added language in 1987 clarifying that the ban also applied to statements opposing candidates). In the fifty-six years since the political activity proviso, the IRS is known to have revoked the tax-exempt status of only one church for violating the regulation, and that was back in 1995. That case didn’t entail political speech from the pulpit, but rather political advertisements. The IRS began investigating the Church at Pierce Creek near Binghamton, New York—also known as Branch Ministries—after it took out full-page ads in USA Today and The Washington Times four days before the 1992 election urging people not to vote for Bill Clinton for president. “Bill Clinton is promoting policies that are in rebellion to God’s laws,” the ads proclaimed, while also soliciting tax-exempt contributions to pay for them.

After the IRS revoked the church’s tax-exempt status, it sued in federal court in Washington, DC, complaining of selective prosecution and maintaining that the IRS’ action denied its First Amendment right to free exercise of religion, as well as violating a federal law called the Religious Freedom Restoration Act. The court rejected all of the church’s arguments, while noting that the government “has a compelling interest in maintaining the integrity of the tax system and in not subsidizing partisan political activity.” Branch Ministries appealed, and the D.C. Circuit Court of Appeals unanimously upheld the lower court’s ruling.

Despite that precedent, Lloyd Hitoshi Mayer, an associate professor of law at the University of Notre Dame, thinks religious groups might have a viable case if they challenge the IRS rule, not on constitutional grounds, but rather as a violation of the Religious Freedom Restoration Act. Enacted in November 1993, the RFRA was created in response to Native Americans’ complaints that government projects encroached on lands their religions considered sacred, and about the illegality of using peyote, a cactus containing the psychoactive agent mescaline used in some Indian spiritual ceremonies.

The RFRA states that the federal government will not substantially burden a person’s exercise of religion unless there is a compelling government interest in doing so. Even then, the government must opt for the least restrictive way in which to further that interest.

A pastor might argue that the IRS rule impedes his exercise of religion, and that he has a duty to inform his flock which candidates to vote for as part of his responsibility to spiritually guide them, says Mayer, who teaches and writes on federal income taxation, election law and not-for-profit organizations. Of course, the IRS could simply revoke a pastor’s tax-exempt status and he would be free to engage in political speech. But Mayer says a clergyman could argue that this is an economic hardship. Besides, the professor adds, “The government isn’t allowed to condition privileges on the giving up of your constitutional rights, at least not absolutely.”

Lawyers in the Branch Ministries case raised, among other issues, the RFRA without success. The federal court acknowledged that the IRS’ action against the church might have made it tougher for it to engage in politics and to obtain donations, but added that Branch Ministries “failed to establish that the revocation has imposed a burden on their free exercise of religion.” By buying newspaper ads, Branch Ministries was clearly wrong, Mayer says. He thinks an argument could be made that political speech from the pulpit is unconstitutionally vague. “Any charity could say we don’t know where the line is,” Mayer says. Maybe, but during election seasons the IRS publishes reminders for 501(c)(3) groups on its website about the prohibition on political activity. The tax agency also provides a guide for churches and other tax-exempt organizations explaining what activities are permissible and what aren’t. “It’s harder and harder for churches to claim ignorance,” Mayer acknowledges. “[But] there are lots of borderline cases.”

Americans United files an average of ten complaints per election cycle with the IRS concerning especially egregious political violations by houses of worship, Lynn says. “They’re trying to get compliance, which is what we’re trying to do,” he says of the IRS. “I believe when people break the law willingly, they ought to be penalized. I want to see them get on with these investigations… and penalize these churches that are obviously intending to violate the law.”

If houses of worship were allowed to engage freely in partisan political activity, Americans United foresees the day when a large church or a group of churches working together could form a political machine that dominates a community’s political life.

Even so, U.S. Rep. Walter B. Jones (R-NC) has tried in vain several times to pass bills that would repeal the rule restricting partisan activity by houses of worship.

Despite the religious right’s assertions that the disputed section of the IRS code curtails free speech, the truth is that pastors have a great deal of freedom. They can sponsor voter registration drives at their churches, which can be the site of a polling precinct. They can personally endorse or oppose candidates and work for or against them on their personal time. They are only barred from putting their church’s imprimatur on such activity—such as placing campaign signs on church property, or endorsing candidates from the pulpit or in letters on church letterhead.

Even though nothing much has come of complaints to the IRS about pastors preaching politics, Lynn, of Americans United, says he has seen progress. In the past fifteen years he thinks there has been a marked decline in the number of churches that distribute voter guides that often are nothing more than partisan pamphlets. Those clergy who do violate the IRS regulation on politicking represent “a narrow range of churches.” Mayer agrees, saying there are an estimated 350,000 to 400,000 congregations of all stripes in the United States.

Most religious people want nothing to do with efforts to permit political activity by houses of worship. The Rev. Dr. C. Welton Gaddy is a Louisiana Baptist minister and president of the Interfaith Alliance, which represents dozens of faiths. He voiced his strong objection in September to “turning houses of worship into pseudo-precinct nominating conventions” and said that clergy participating in the Alliance Defense Fund protest “don’t respect their congregants enough to let them make their own choices.” The alliance obtained pledges from more than 200 religious leaders in 2008 stating they would not make political endorsements from the pulpit or on behalf of their religious institutions.

While today’s pastor protests are emanating from the religious right, neither religious conservatives nor churches have a monopoly on violating the IRS regulation barring tax-exempt groups from certain political activities. Two of the most notable cases in recent years occurred in the presidential election year of 2004. One involved an antiwar sermon critical of President George W. Bush at an Episcopal church. The other concerned a speech critical of Bush to the tax-exempt NAACP.

In the first case, Rector emeritus George Regas preached a sermon the Sunday before the 2004 presidential election at All Saints Episcopal Church in Pasadena, California, opposing the Iraq War. Regas couched the sermon as a debate between Bush and Sen. John Kerry, moderated by Jesus Christ. Regas supposed that Jesus would have told Bush that “your doctrine of preemptive war is a failed doctrine.” The IRS demanded church documents related to the sermon. The church asserted that the sermon was protected by the First Amendment, and established a legal defense fund. The IRS closed its investigation without revoking the church’s tax-exempt status.

In the second case, the IRS probed the tax-exempt status of the NAACP after the civil rights group’s chairman, Julian Bond, harshly criticized Bush’s policies “on education, the economy and the war in Iraq” in a speech at the organization’s annual convention in July 2004, an IRS document noted. “We know that if whites and nonwhites vote in the same percentages as they did in 2000, Bush will be re-defeated by 3 million votes,” Bond told his audience.

When the IRS investigated, Bond and others complained that the probe was politically motivated. (Branch Ministries unsuccessfully made the same allegation in its benchmark case). The IRS commissioner strongly denied any political considerations in the NAACP review. Ultimately, the NAACP maintained its tax-exempt status.

“What did the IRS do in both cases? They blinked,” Mayer says. “They are worried about the constitutional issues and the Religious Freedom Restoration Act. They are afraid they could lose. The more they duck, the more people who are willing to be aggressive will ignore the law.”

One wonders if conservative lawmakers may even end up abetting politicking preachers with their plan to dismantle President Obama’s healthcare reform bill. After the November mid-term elections, leaders in the now-majority Republican House said they would restrict IRS funding, thus limiting the agency’s ability to make sure individuals obtain health insurance. Less funding for that, less funding for the Political Activity Compliance Initiative. Isn’t this what the conservative right wants after all—less government with more religion in it?

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