Alert the Media

This is probably going to come as a shock to my regular readers, but I'm going to agree with Pat Buchanan and the Worldnutdaily. In Pat's most recent column, he endorses a bill in front of Congress called the Houses of Worship Free Speech Restoration Act of 2005. The bill would change the Internal Revenue Code to allow ministers and other church officials to endorse candidates and take positions on partisan political issues without risking their tax exempt status. I agree with this and think the bill should pass, for several reasons.

First, the rules as written currently are so vague that they are prone to abuse. What precisely is prohibited and what precisely is allowed for charitable organizations to do is very much a matter of interpretation. As the organization pushing this bill say in their FAQ:

For purposes of IRC Section 501(c)(3), legislative activities and political activities are two different things, and are subject to two different sets of rules. The latter is an absolute bar. An IRC Section 501(c)(3) organization may not 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. Whether an organization is engaging in prohibited political campaign activity depends upon all the facts and circumstances in each case. For example, organizations may sponsor debates or forums to educate voters. But if the forum or debate shows a preference for or against a certain candidate, it becomes a prohibited activity. The motivation of an organization is not relevant in determining whether the political campaign prohibition has been violated. Activities that encourage people to vote for or against a particular candidate, even on the basis of non-partisan criteria, violate the political campaign prohibition of IRC Section 501(c)(3).

Political candidates of all stripes give speeches at churches all the time, especially during a campaign. Is that prohibited? What if the church only allows those of one party to speak and not another? That happens all the time too.

Second, it would end the fiction that churches are not endorsing candidates. Churches and ministers do endorse candidates currently, they just do it while painstakingly holding to the letter of the law to protect themselves. Democrats typically speak in front of liberal churches, while Republicans typically speak in front of conservative churches. Is giving a forum to only one candidate an endorsement? It seems obvious that it ought to be viewed as one, but it's generally not seen as one. So why not end this fiction? Let churches endorse candidates if they choose because everyone knows that they're doing it anyway, just with the dishonest pretense of not doing it.

Third, the law as currently written provides too much entanglement between church and state. It requires that the IRS analyze sermons and pastoral communications to insure that they don't include some technical violation of a very subjective set of rules. Do we really want that kind of oversight? Do we really want the government monitoring speech in churches to parse subjective statements of a political nature? I don't think we do.

Fourth, I don't believe the restrictions are constitutional, at least not strictly so. We place a very high priority on protecting speech, especially political speech and especially speech in churches. In order to justify a law that sets restrictions on what may or may not be said in a sermon, the law must meet the highest and most strict level of scrutiny we can apply. And I simply do not believe there is a compelling state interest that comes close to justifying such limitations in this case. If you can think of any interest that would meet such strict scrutiny, I'd like to hear it. But since, as I said before, the rules are subjective enough as it is to allow churches to give de facto endorsements, there can't possibly be enough of a harm associated with de jure endorsements to justify giving government the power to punish churches for the explicitly political speech of ministers.

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The problem with allowing churches or other tax-exempt organizations to endorse political candidates, as I see it, is that they are subsidized (through tax exemption on federal, state, and local levels). I don't want an organization that benefits from my tax dollars to be allowed to endorse candidates for office. If they want to endorse political candidates, they are allowed to do so simply by giving up their tax exempt status. They are not denied freedom of expression. They are the recipients of special treatment, different from other organizations or individuals. Since they are treated specially by the government, the government should be allowed to set special rules for them. Allowing them to use their special platforms for political purposes is like letting corporations determine the way corporations are governed. (Wait a minute. We do that.) I mean it would be like letting prison inmates vote on penal legislation.

By Mark Paris (not verified) on 21 Mar 2005 #permalink

Mark-
I think we should view this as two different issues. Whether churches should be tax exempt or not is one issue; whether they should be allowed to endorse candidates is a different issue. The problem is that using the subsidization argument, you could justify any possible intrusion on church affairs. You could just as logically argue that the government can tell churches who to hire, or even what theological positions they can take, and if they don't like it, they can just give up their tax exempt status. The question, in each case, must be whether such intrusion is justified. And given the very high scrutiny we give to regulation of political speech, I don't think it can possibly be justified in this case.

I agree to a certain extent. However, political speech is different because if it were allowed for tax-exempt organizations, it would create the possibility that the government (taxpayers) would subsidize political activity that would benefit those undertaking the activity. I don't want my tax dollars to support someone's political activities, especially since they will almost certainly work in favor of policies I consider anathema. Does the government subsidize any other type of partisan political activity? (I mean other than this administration's propaganda activities.) I think it is perfectly reasonable to say that if the government gives an organization special treatment, the government is allowed to specify certain behavior. That's the way the federal government justifies forcing states to do certain things in order to get federal highway dollars (for example, the late, unlamented federally-mandated 55 mph speed limit). It's hard to argue about what the government might do to tax-exempt organizations when the government already places some very demanding strings on federal funding.

You know, there's a very easy out for churches; just give up their tax-exempt status. In fact, a strict reading of the bible should encourage most churches to do that anyway.

By Mark Paris (not verified) on 21 Mar 2005 #permalink

Sorry, but Mark Paris is right on this one. If you want the tax exemption, you stay out of overt endorsement. You want to be free of that, give up tax exempt status. I see little reason to uncouple the two. It would give us the worst of both worlds: tax-favored churches that are even more overtly politically active than some are already.
Hell [no pun intended--- well, maybe a little one], given the financial hole we are merrily digging for our selves and our children, ending church tax exemptions makes sense on economic grounds alone.
Professional Christians [that is not a compliment], like Professional Scouters [also not a compliment] want it both ways: to be wholly private organizations when it is to their advantage to be such, but at the same time to be quasi-public organizations (with special privileges) when it is to their advantage to be such (witness the Hon. [?] Senator Frist's recently introduced bill authorizing military posts to reestablish Boy Scout troops). We should not be encouraging such "special exemptions" legislation which is what both the Buchanan and Frist bills would be.

By Flatlander100 (not verified) on 21 Mar 2005 #permalink

I agree to a certain extent. However, political speech is different because if it were allowed for tax-exempt organizations, it would create the possibility that the government (taxpayers) would subsidize political activity that would benefit those undertaking the activity. I don't want my tax dollars to support someone's political activities, especially since they will almost certainly work in favor of policies I consider anathema.
The problem I have with this line of reasoning is that, if it is followed consistently, then we have to get rid of all forms of tax exemption. If we're going to seriously make the argument that tax exemption is the same thing as "our tax dollars going to support" the organization, then isn't tax exemption for churches, by this reasoning, the direct subsidization of religious belief and hence unconstitutional? You say you don't want your tax dollars going to support the advocacy of political positions you don't support, but then why accept your tax dollars going to support the advocacy of religious positions with which you disagree? For that matter, we give tax exempt status for a wide range of organizations that advocate all sorts of controversial ideas that you could also argue that you don't want your tax dollars to go to support. Should a conservative Christian have their tax dollars go to support, via tax exemption, a public museum that teaches things that are anathema to them? Should a beef producer be forced to support, via tax exemption, a non-profit organization that advocates animal rights? One could go on all day. If we begin with the premise that tax exemption amounts to subsidizing the views of a non-profit group, and that this is fundamentally unfair, then logically we must get rid of tax exemptions across the board, which we are of course not going to do. So the question then becomes, what kinds of regulations are acceptable as a requirement for tax extempt status? It has to be genuinely non-profit, of course; I'm sure we can all agree on that. But when it comes to regulations that require government monitoring and oversight of explicitly political speech, especially in churches, the courts should apply the strictest possible scrutiny, and the question then becomes whether there is a compelling state interest for such regulation. Given that we allow de facto endorsements all the time, and everyone knows it, I can't see any compelling interest in preventing de jure endorsements.

My wife is in the ministry. She does not and has not desired to endorse candidates for office nor take positions on public referenda. She finds that political involvement is polarizing and detracts from her church's mission which is spiritual and not secular.

It's not too much to ask that organizations give up tax-preferred status when their activities cease to be those which got them the preference in the first place.

Aren't most 501/503/527 groups, other than churches, funded, by donations and other economic support, for the purpose of actively advocating certain political agendas?? Is not part of the arcana involved in those special clauses for churches representative of their tax exemptions at state and local levels, particularly for property? Think tanks, foundations, NGO's etc. pay property taxes, or in lieu fees within their leases for same. Churches receive a wider range of exemptions and thus a status that affords them a great many opportunities that others do not have; all of which was indeed garnered by actively politicizing their agendas. As is their historical nature, christian sects have been enmeshed in politics since they began, advocating for this and that, controlling, for a while, most of the western world's political structure. How is now any different??

Ed, I am not a tax lawyer, so I don't know all the requirements for an organization to be tax exempt. I assume that if it is charitable and not for profit, then it can be classified as tax exempt. If a church falls within that classification, I have no problem with making it tax exempt, no matter how much I disagree with their beliefs. I don't think a church, as such, should be tax exempt; the tax exemption should extend only so far as the charitable activities extend. That might not be the case now.

But I think there really are two issues here, and they should not necessarily be conflated. I reiterate my position: if an organization is tax exempt, it is essentially subsidized by tax dollars (since it receives the same services that tax-paying organizations receive and can buy other services with untaxed income), and I do not want a government-subsidized organization lobbying for government action that can either benefit them or harm me.

By Mark Paris (not verified) on 21 Mar 2005 #permalink

I don't see why tax-exempt churches should be able to endorse candidates, but the ACLU cannot endorse candidates and be tax exempt. There are lots of groups which advocate for certain causes and endorse candidates as a result. Why not let them all be exempt?

My beef with the law is that it singles out religious activities. In the fight between creationism and science, it would have a huge effect.

Kansas Citizens for Science is a 501(c)(3), and can't endorse candidates for school boards, state or federal legislature, attorney general, governor, etc. Jerry Johnston, Terry Fox, et al. would rush to fund creationists and Reconstructionists throughout, while science advocates would be stuck, unless they flip-flopped and claimed that science is a religion.

Bad mojo. Religious speech is the same as any other speech, and shouldn't be treated differently. Tax exemption and endorsements are inextricably linked. Until that changes, it's silly to act as if they were separate issues.

Josh-
That's a good point, and I would go as far as to lift that restriction for all non-profits and not just churches.

I cannot imagine the pollution and adulteration of the churches that would ensue if all the wraps came off on political speech. Churches would cease to be places of worship and would be mere political clubs, where the standard of what constitues truth would be fatally compromised.

It's bad enough that this happens in some so-called churches, but for it to happen on my dime!

Ed: pass this by Americans United for the Separation of Church and State. I'll be you'd get a cyber-ear full!

The mere fact that establishments of religion are tax exempt is, in and of itself, a violation of the 1st amendment. "Congress shall make no law respecting an establishment of religion..." A law (or regulation) exempting establishments of religion from taxation is clearly a law respecting an establishment of religion. How much clearer can that be?

It's bad enough that this happens in some so-called churches, but for it to happen on my dime!
I disagree with this reasoning. If you're going to apply this reasoning consistently, then anything any non-profit organization does - including groups that you would be entirely opposed to - is happening on "your dime". This argument can only be made if one is willing to do away with non-profit tax exemptions entirely, otherwise every single thing they do is happening on your dime and can therefore be regulated.

The mere fact that establishments of religion are tax exempt is, in and of itself, a violation of the 1st amendment. "Congress shall make no law respecting an establishment of religion..." A law (or regulation) exempting establishments of religion from taxation is clearly a law respecting an establishment of religion. How much clearer can that be?
I think you're confusing two very different usages of the word "establishment". In the first amendment, it refers to legal establishments, i.e. legal unions of church and state. The law today does exempts churches, not "establishments of religion", as "establishment" would have an entirely different meaning in this context. In that context, it would mean a physical building or organization as opposed to an abstract legal principle.

It's a shame that anyone in the USA has to be told, "Watch what you say." This includes churches that may want to take political positions.

So let's abolish their tax exemptions, and let them say whatever they want.

Which taxes, exactly, are churches exempt from? The only one I know of for a certainty are property taxes on their real property. And what is the rationale behind their being tax exempt?

Understanding on those two issues would probably go a long way toward clarifying whether or not there really is a double standard being applied here.

My understanding was always that churches are supposed to attend to a person's "spiritual needs" (I honestly have no idea what those are, but I'm not advocating the position here, just explaining how I've understood it), while government attends to a person's material needs - like properly paved streets and clean drinking water.

But religion has *never* seen itself as attending to only spiritual needs. Or maybe it's just that "spiritual needs" cannot be examined independently of material needs. Whatever the reason, it's part and parcel of America's history from even before our legal independence. The Great Awakening fed the revolutionary movement. Churches were the biggest source of abolition advocacy. And probably one of the biggest sources of anti-abolition advocacy, come to think of it. The whole church/civil rights movement interrelation goes without saying.

This kind of thing has been a mixed bag for America. It's obvious that church involvement in the civil rights movement did the country a lot of good, but church involvement in, say, the turn of the century temperance movement resulted in Prohibition, which I certainly see as a dark spot in our history.

Perhaps we just need to reconsider why we exempt churches from taxes in the first place.