Tax-exemption, political speech, and the changing tide

We are hearing more and more conservative pundits and religious leaders have begun to criticize the tax rule that strictly prohibits tax-exempt charities and religious organizations from direct political campaign activity. The idea is that when a church or pastor cannot use the energies and funds of a congregation on behalf of their favorite candidate then their freedom of speech is being denied.

Next week, the Federalist Society will sponsor a panel discussion co-sponsored by the religiously conservative Alliance Defense Fund on the subject.

In 1954, Senator Lyndon B. Johnson of Texas introduced legislative language that changed the IRS code, prohibiting non-profits and churches from endorsing or opposing political candidates. Critics of the Johnson Amendment assert that this provision in the code – Section 501(c)(3) – violates the First Amendment’s Free Exercise Clause, while supporters contend the Johnson Amendment preserves the First Amendment’s Establishment Clause.

Our panel will examine the application of the Johnson Amendment to religious ministers in their preaching duties during worship services. Does the Johnson Amendment constrain clergy from effectively imparting messages integral to their faith, or is it an appropriate safeguard to ensure that churches and government limit their respective activities?

The panel will include Benjamin W. Bull, Chief Counsel, Alliance Defense Fund, Professor Douglas Laycock, Yale Kamisar Collegiate Professor of Law, The University of Michigan Law School, the Rev. Barry W. Lynn, Executive Director, Americans United for Separation of Church and State, and Professor Donald B. Tobin, Associate Dean for Faculty, The Ohio State University, Michael E. Moritz College of Law.

Of interest to Episcopalians is that the moderator of the discussion will be Steffen N. Johnson, an attorney with Winston & Strawn LLP and lead counsel for the Convocation of Anglicans in North America in their court battle with Episcopal Diocese of Virginia.

The basic argument against the Johnson Amendment is that it violates the free-speech rights of clergy and makes the government an enforcer of proper religious speech. That argument (and one response) is found in this op-ed in the Los Angeles Times last September.

What is not being discussed is the question of mobilizing a congregation or denomination for direct political action. The current tax code restricts more than the direct endorsement of a candidate for a politician, but the distribution of flyers, political campaigning, canvassing and voting materials directly supporting a party or candidate. Certainly this kind of activity is of more concern to the IRS than the political bumper sticker on the pastor’s car.

Religious groups have been skating around the edges of the rules for years. The Moral Majority was built, saw its heyday and eventual decline, on the use of barely non-partisan voter guides and similar materials which are the staple of other groups today. Roman Catholic bishops who threaten ex-communication for pro-choice Catholic politicians are a hairs-breadth away from outright endorsement of the candidates they prefer.

On the liberal side, many main-line clergy who may have supported Barack Obama were put-off by outright appeals to register voters in their church basements during the last election. Historically African-American churches have been registering voters for year, but idea of the extension of that work into mainly white main-line churches caught many pastors off-guard.

Mark Everson, Commissioner of Internal Revenue in the second Bush administration, spoke about this separation and the Johnson amendment in Cleveland in 2006. You may recall that at the time, All Saint’s Church in Pasedena was being investigated for a sermon given from their pulpit critical of the then-President’s policies, but at the same time in Ohio, conservatives churches were not being sanctioned for direct political campaigning in that state until some clergy complained to the press and the IRS.

At the time, the IRS was being criticized for using the Johnson Amendment selectively; against those who opposed the administration and ignoring those politically active churches that agreed with the administration.

Here is what he said he said in response:

Americans have always held our charities and churches in high esteem. We recognize the vital role they play in our national life. For many decades, the Internal Revenue Code has provided an exemption from tax for organizations with “charitable, religious or educational purposes.” That is to say, those that operate exclusively for the public good.

In 1954, Congress saw the need to separate charities and churches from politics. An amendment was offered on the floor of the Senate by then-Senator Lyndon Johnson.

The Johnson amendment is found within the well-known section 501(c)(3) of the Internal Revenue Code. In its present form, the law states that charities, including churches, are not allowed to “participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.”

Freedom of speech and religious liberty are essential elements of our democracy. But the Supreme Court has in essence held that tax exemption is a privilege, not a right, stating, “Congress has not violated [an organization’s] First Amendment rights by declining to subsidize its First Amendment activities.”

The rule against intervention by charities and churches in political campaigns has been entrenched in the law for over a half-century. Congress enacted the law. The Courts upheld it. Our job at the IRS is to educate the public and charities about the law and to enforce it in a fair and evenhanded manner.

We have seen a dramatic increase in the amount of money financing politics. The level of funds going into the campaign area from organizations regulated by the Federal Election Commission has shown staggering growth. For the 2003-2004 election cycle, the FEC reported that over $10 billion was spent, more than double the $4 billion spent during the 1999-2000 election cycle, the last election cycle that included a presidential contest.

Similar, sharp increases were reported in the receipts and expenditures by section 527 political organizations reporting to the IRS. In the last six months of the 2004 election cycle, these organizations, which typically are involved in election related issue advocacy not regulated under the stricter FEC rules, reported over $300 million in expenditures, more than double the $150 million in expenditures reported in the comparable period in the 2000 cycle.

Are we going to let these political activities spread to our charities and churches? Now is the time to act, before it is too late.

While the vast majority of charities, including churches, do not engage in politicking, to address what we saw as increasing political intervention in the 2004 cycle, the IRS adopted a two-pronged approach. First, we expanded our educational efforts to remind section 501(c)(3) organizations — charities and churches — about the prohibition on political activities and the consequences of violating it. We spread this message every way we could: by press releases, speeches, workshops, IRS Nationwide Tax Forums, and even in a letter to seven national political parties.

The attempt to undo the so-called Johnson Amendment may be a political hail-mary by the religious right to attempt to regain the political dominance they saw in the 1980s and 90s.

James Dobson founder of Focus on the Family has, in his dismay over the election of Barack Obama and the loss of Congress to Democratic majorities, has dropped all pretense of non-partisanship. According to US News and World Report he called the passage of the Matthew Shepard hate crimes bill “an utter evil.” This is not so surprising but his remedy is revealing. According to writer Dan Gilgoff:

Dobson made headlines earlier this year when he said that conservative Christians had entered their “most discouraging period” and that “humanly speaking, we can say that we have lost all those battles.” He later explained that he meant that conservative Christians had lost many battles, but that the culture war was by no means over.

What’s remarkable about today’s broadcast is that Dobson plainly states that the only way for Christians to start winning again politically is for the GOP to regain power. He makes no effort to avoid coming across as a Republican activist. For a long time, Dobson went out of his way to keep up the appearance of being above partisan politics.

As he enters what may be the twilight of his broadcasting career, he appears to care less and less about maintaining that image.

At one time, conservative Christian leaders denounced progressive Christians for what they saw as a crossing-of-the-line between church and state when they worked for civil rights, peace and environmental causes. Then they took the progressive play book and refined it to a remarkable degree for their own use.

Now that they find themselves on minority side of the past two election cycles, they wish to eliminate the line altogether in the name of free speech in the hope that if congregations that can openly campaign and use the organizational power of congregations and denomination for their own use, they can regain the political clout they once enjoyed.

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