Aug 15, 2013

Government advised to allow politics in the pulpit

Fourteen religious leaders -- mostly evangelicals with conservative political leanings -- filed a report with Republican Senator Chuck Grassley, Wednesday, arguing for tax code reform that would allow churches to endorse political candidates.

As it currently stands, 501(c)(3) groups such as churches are exempt from paying taxes and can offer donors tax deductions on charitable contributions. They also don't have to file tax returns, which other non-profit groups do. They are forbidden, however, from engaging in political campaigns. They cannot give money to candidates and they cannot endorse candidates. They can lobby legislators, attempting to influence legislation, and can make statements about political issues, but only as long as that is not a "substantial" part of their regular activities.

Some churches skirt these issues, giving coded and indirect endorsements. In recent years, more than 1,000 Christian pastors have organized to break the law on a designated Sunday in an act of civil disobedience. They have sent recordings of their overtly electioneering sermons to the IRS to try to start a legal battle. These pastors believe that they should have the right to the non-profit tax status without having to sacrifice political speech.

The IRS has not responded to the provocations.

Audits of religious groups' election-related activities seem to have stopped in 2009, for reasons that aren't entirely clear.

There have been questions about who within the IRS is empowered to authorize an audit, if anyone. The rules require a regional commissioner to authorize the audit of a 501(c)(3), but bureaucratic reorganization left the IRS without any regional commissioners. The last known audit -- where a pastor endorsed Republican presidential candidate Michele Bachmann from the pulpit -- was thrown out of court because of the authorization question. Since then, there have been no known cases of enforcement, despite some flagrant violations of the law.

The Commission on the Accountability and Policy for Religious Organizations cites the IRS' failure to enforce the rules as one of the reasons the "electioneering prohibition" should be killed.

Other reasons:
  • The official guidelines are vague, and put a chill on permissible free speech.
  • The IRS has not enforced the rules in any consistent way.
  • For some faith communities, political engagement is part of their culture and history. 
The group -- which includes representatives from the Southern Baptist Convention, the Assemblies of God, Esperanza, Cru, and Chik-fil-A's charitable arm, the Cathy Family Foundation -- concludes that the "status quo is untenable."

Even some experts who oppose religious groups' engaging in electioneering agree. In a 2007 article published in the Georgetown Law Review, Donald B. Tobin argued that the ban is constitutional, is good for democracy and good for 501(c)(3) groups. But, Tobin wrote
The current enforcement regime creates uncertainly and has the potential for political manipulation. It improperly places the IRS in the unenviable position of having to judge the political motivations and content of communication. The IRS's expertise is in tax administration, not election law.
Tobin notes further structural problems with the status quo: 501(c)(3)s aren't required to provide much information about their internal workings, making it "very difficult to trace how money is spent by the 501(c)(3) organizations," or even what specific activities they are involved in; the IRS is required to keep their investigations secret, meaning that little is known about standards of enforcement and the process is open to political manipulation; taxpayers, candidates and other interested parties have been found to lack the standing necessary to file a legal complaint against a 501(c)(3).

Some have argued, further, that lifting the electioneering prohibition on religious non-profits wouldn't actually change that much. It might not mean that, all the sudden, lots of religious groups would endorse candidates and pronounce on political campaigns.

One of the few left-leaning evangelicals on the Commission on the Accountability and Policy for Religious Organizations told the Washington Post that most churches wouldn't endorse candidates even if they were allowed to. The paper reported
'I think there are some pockets of very conservative folks or very liberal folks who will use this in a partisan way. But when you become more specific [about candidates] you cut off a big portion of your congregation, and not a lot of religious leaders want to do that,' said Joel Hunter, leader of the Florida megachurch Northland and a sometime adviser to President Obama. 'The issue is: Do they have the freedom to do it? For me it’s a First Amendment issue, a religious-freedom issue.' Hunter says he preaches on environmental and poverty issues and policies but not specific candidates.  
Experts and even leaders of the commission agreed with Hunter that most clergy wouldn’t want to endorse from the pulpit -- not because of the IRS but out of fear of alienating members at a time when young Americans in particular are fed up with the merger of partisan politics and religion.
There are arguably even more religious groups that simply do not believe it is their mission, their mandate from God, to speak on political issues.

On the other hand, as Sarah Posner argued in 2011 at Religious Dispatches, the group that gave this report can't really be seen as apolitical. The group was formed at Sen. Grassley's request, as a concession to religious right groups while he tried to investigate the financial practices of prominent televangelists. The senator suggested the group could come up with some standards for self-regulation, kind of punting on the issue as his term as ranking member of the Finance Committee came to an end because of term limits. The senator's staff said the advisory committee would "hopefully result in a proactive and collaborative approach to compliance with federal laws."

Posner writes,
Let's be clear here: the organizations named as having a 'distrust' of government do not represent all 'churches and religious organizations.' These are all religious right organizations who have an antipathy toward government and government regulation, particularly of religious organizations. As the staff report notes, one of the concerns of these groups was the Employment Non-Discrimination Act -- in that context, they want to be free from civil rights laws prohibiting discrimination against LGBT people, because, they insist, religious freedom demands it. Similarly, greater government oversight of what religious organizations do with their tax exempt privileges is seen as an intrusion.
The group was advised by a panel of 66 religious leaders, representing a more diverse range of churches than the 14 making up the committee. The extent to which those 66 endorse the conclusions isn't clear, though.

There are concerns and questions about the affects of revisions to the 501(c)(3) code. Many have expressed concerns about the role of secret money on elector politics, and the suggested revisions could mean more of that. Many have also been concerned about the role of religious leaders in politics, arguing that it aggravates cultural divisions and undermines the constitutionally guaranteed secularity of the public square. The suggested changes to the tax code would likely mean more political pastors.

As a minister with Americans United for the Separation of Church and State warned, if the prohibition is lifted, "we're turning houses of worship into Super PACs."

It's not likely that anything will come of this report. Nevertheless, it's part of a mounting argument against the prohibition against religious groups engaging in elections. It's another articulation of the problems of the current system, and a particularly clear one.