Replying to Kuznicki on Churches Endorsing Candidates

Jason Kuznicki has written what he terms a respectful disagreement with my post yesterday advocating that we change the IRS rules to allow churches to endorse candidates without losing their tax exemption. All disagreements between the two of us, rare as they may be, will of course be respectful on both parts. Jason is a first rate thinker and his views on any subject should be taken seriously and given all due consideration. Having said that, I don't think he's quite convinced me. Let's take a look at the arguments. Jason writes:

If a church holds a pre-election forum, it is required to invite all qualifying candidates to speak. It simply is not true that liberal churches invite only Democrats and conservative churches invite only Republicans. If they ever do, it is a violation, and they are subject to losing their tax-exempt status.

But is this the case? As far as I know, it is not. John Kerry made several appearances at churches during last year's campaign, as did Bush, and at no time were they both there together. In more localized campaigns, it is far more common and I myself have attended several political speeches by candidates at churches where only one candidate was present. Indeed, even according to Americans United on the page that Jason linked to, they say:

Depending on the facts and circumstances, a church or religious organization may invite political candidates to speak at its events without jeopardizing its tax-exempt status. Political candidates may be invited in their capacity as candidates, or individually (not as a candidate).

All that is required, according to this page, is that it "provides an equal opportunity to the political candidates seeking the same office". So Candidate A decides to appear at a given church. The church sends out an invitation to one of the offices of Candidate B saying, "If you'd like to appear at our church on such and such a day, you are welcome to do so." The office of Candidate B naturally tosses it in the trash, since everyone knows that church tends to be politically opposed to their views and there's no point in wasting precious campaign time going there. Voila, the church has now gotten around the requirement of giving equal opportunity. The only additional requirements are that no fundraising may occur there and the church cannot indicate that they are actually endorsing a candidate. So while introducing the speaker, they issue an explicit disclaimer:

"We are pleased to have the esteemed Senator Kerry here today, and thankful to him for taking time out of his busy campaign schedule to come and talk with the good folks of the Merrywood Baptist Church. Now, our church does not make official endorsements because we cannot do so under IRS rules, so this event should not be viewed as one. We also invited President Bush to speak, but he chose not to. Perhaps he thinks your votes are not important enough. But be that as it may, Senator Kerry is here and he would like to say a few words to you all, and afterwards he'll answer your questions and we'll have dinner."

Simple as that, you have an endorsement that isn't an endorsement - after all, the pastor said outright that it's not an endorsement - and everyone winks at it. They can also invite the candidate to speak as a "non-candidate", meaning he just can't mention the campaign. But it's not difficult to campaign without actually mentioning the campaign itself. The same thing goes on in thousands of churches every week where the candidate doesn't actually speak. They put out "voter guides" where they talk about all the things they care about - abortion, pornography, "activist judges", drugs, immorality on television, gay marriage, etc - and rate the candidates, with one getting a perfect score and the other a mere 14%. It's not an endorsement, mind you. They'll even put a disclaimer right on the guide saying, "This isn't an endorsement." But it is, and everyone knows it is. And it goes beyond that...

Ministers are of course allowed to preach on political issues, including all those listed above. Many ministers preach about politics every single week from the pulpit, railing against the litany of evils I listed above and more. Without referring to specific candidates or political parties, they can of course talk about the importance of insuring that our leaders are "on God's side", or a thousand other euphemisms. All perfectly legal. Again, it's an endorsement without an endorsement, and everyone understands perfectly well what it is. Indeed, they can even go further than that, as the AU page itself says. They detail several scenarios where a minister may make an explicit endorsement:

Example 1: Minister A is the minister of Church J and is well known in the community. With their permission, Candidate T publishes a full-page ad in the local newspaper listing five prominent ministers who have personally endorsed Candidate T, including Minister A. Minister A is identified in the ad as the minister of Church J. The ad states, "Titles and affiliations of each individual are provided for identification purposes only." The ad is paid for by Candidate T's campaign committee. Since the ad was not paid for by Church J, the ad is not otherwise in an official publication of Church J, and the endorsement is made by Minister A in a personal capacity, the ad does not constitute campaign intervention by Church J....

Example 3: Minister C is the minister of Church L and is well known in the community. Three weeks before the election, he attends a press conference at Candidate V's campaign headquarters and states that Candidate V should be reelected. Minister C does not say he is speaking on behalf of his church. His endorsement is reported on the front page of the local newspaper and he is identified in the article as the minister of Church L. Since Minister C did not make the endorsement at an official church function, in an official church publication or otherwise use the church's assets, and did not state that he was speaking as a representative of Church L, his actions did not constitute campaign intervention attributable to Church L.

There is much more on the AU page about all facets of the IRS rules on this issue, and what it shows is that determining a violation is quite subjective, and hence prone to abuse. Contary to Jason's assertion, the rules are not "narrowly tailored", they are quite subjective and open to interpretation. And they are all designed essentially to maintain a sort of polite fiction that no one really believes anyway. Everyone knows that churches do endorse candidates. The myriad of rules just gives them the roadmap for how to do that while being able to wink at everyone and say, "Hey, we didn't do that."

It is indeed lamentable that the IRS must read over sermons to determine whether a violation exists. The alternative, though, is much worse: Consider how both American politics and American religion would be cheapened if ministers could threaten the eternal souls of their congregations for failing to vote in the proper way. Consider the temptation that would exist under such a system, not merely to infringe upon a set of difficult and subjective rules--but to substitute politics entirely for the work of the spirit.

But my point is that ministers already do that, and no one can stop them. Ministers already rail against the sinfulness of certain policies, and how no Christian in good conscience could support someone who is pro-choice, or who accepts homosexuality as something other than the sin that God declares it to be, and so forth. And I'd say that any church that is likely to endorse a candidate under the proposed rule changes is already endorsing candidates under the current rules, they're just doing it in one or more of the many ways they can already do so.

Centuries of European history have shown that whatever their other purposes, churches can also make remarkably adept political machines, and it is best to keep them out of the hands of those who would employ them as such. When mixed with political power, religious fanaticism is deadly. And when mixed with political power, most religions incline toward fanaticism. Without that power, though, fanaticism is little more than an embarrassing footnote in our cultural life.

I certainly don't disagree with this. But I would argue that what is dangerous is the wedding of governmental power with religion, the entanglement of the two, and by giving the IRS oversight that allows them to selectively and subjectively punish a church for saying something in the wrong manner or the wrong context, we are encouraging that very entanglement. Better, I would argue, to allow the churches to say whatever they choose to say and to do it openly and boldly rather than having to do it with a wink and a smile. I would maintain that they will have less influence when they are direct and up front about their positions than they are now, when they have to hide it behind euphemisms and catchphrases and insincere disclaimers.

Mr. Brayton asks about the compelling interest that justifies this infringement on the freedom of speech, but to me it is clear. We have these laws because they allow each citizen to pursue both their religious and their political views independently of one another--and independently of all other forces on earth. Each is an individual right, and neither one must be sacrificed to the other.

But each citizen already has that choice, and will continue to have that choice. Some churches will be explicitly political and some will not, just as is the case under the current rules, and I would venture to guess that it'll be the same churches. Churches who get too involved in politics may well see their membership decline, if people would rather "pursue both their religious and political views independently of one another." But at least it will be out in the open and not hidden behind disclaimers that no one believes. And at least it will get rid of the potential for abuse and get the government out of the business of monitoring sermons and church newsletters to make sure that they gave their de facto endorsements in the prescribed manner.

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Ed, it seems to me that you are using an argument based on technicalities, or "what really happens" vs what legally happens. But technicalities are what the law is about; it's all technicalities. It also seems to me that if you pursue that to its logical conclusion, and if you believe that tax exemptions will end up subsidizing political activities, the best answer is to eliminate tax exemptions for any organization that engages in political activities. In the end, there is a value judgement. My belief is that I do not want to subsidize an organization that may take political action that hurts me. That's what will happen if churches are allowed to become political advocates.

By Mark Paris (not verified) on 22 Mar 2005 #permalink

Ed, it seems to me that you are using an argument based on technicalities, or "what really happens" vs what legally happens. But technicalities are what the law is about; it's all technicalities. It also seems to me that if you pursue that to its logical conclusion, and if you believe that tax exemptions will end up subsidizing political activities, the best answer is to eliminate tax exemptions for any organization that engages in political activities. In the end, there is a value judgement. My belief is that I do not want to subsidize an organization that may take political action that hurts me. That's what will happen if churches are allowed to become political advocates.
If you take the position that tax exemptions are the same thing as "subsidizing" an opinion, then all non-profit organizations are being "subsidized". And that means that, regardless of whether this proposed law becomes true, there are groups being "subsidized" that may take political action that hurts you - groups that advocate policies you disagree with, groups that advocate policies that might even damage your career, and so forth. So you are making an argument that, if applied consistently, would require that we do away with all tax exemptions for all advocacy organizations. And that may be a good idea, I don't know; I haven't really thought it through. My only point here is that we should not allow violations of free speech and excessive entanglement of church and state (which also guards against state intrusions on the church, not just church intrusions on the state) and use their tax exemption status as the stick to beat them with if they say the wrong thing.

I'm certainly not of the opinion that tax exemptions are tantamount to subsidies. I also admit that the solution I favor is far from perfect, in that it will remain open to the types of abuses you mention. Yet it seems to me that most of the objections you raise here could be met simply by tightening the rules about equal access for candidates. I find these rules somewhat distasteful, but I find the all-out co-opting of churches far more so. I also suspect, contrary to your belief, that if the rules were removed, many more churches would be taken over by people whose chief interest in them was to further a certain political agenda, not to advance spiritual or charitable goals.

The disclaimers and penalties, though perhaps no one believes in them, still do serve a purpose: They act as a reminder that the church in question really is trying to enter politics, and that the republic has agreed that this is the case. They act as warnings, not as prohibitions, and this is to my mind an elegant solution to the problem of balancing free speech in churches and in politics, while protecting the one from taking over the other.

I'm certainly not of the opinion that tax exemptions are tantamount to subsidies.
I know, and I wasn't addressing that to you. You didn't make that argument, but Mark and a couple of others did. As far as the rest of the argument goes, I think we're both on the ambivalent sides of the divide. I certainly recognize your concerns as valid, as you recognize that having the IRS monitoring sermons for content is not something we should be happy with. I'm not gonna go and campaign for the law to be changed, mostly because I don't think much would change if we did. The churches already do endorse candidates, and everyone knows it, so it's not really a big deal either way. I'm just uncomfortable with giving that kind of subjective authority to the federal government.

Just one more comment, since the debate apparently can't be decided - it's too much a value judgement, I think. I call tax exemption a subsidy because it allows an organization to have more money at its disposal through not paying taxes than a taxed organization has. That means every one of their dollars is worth more, because they get to keep more of it. Government action results in their having more money than a taxed organization with exactly the same income and property value. Also, they receive certain services from governments without paying for them. The cost of these services is paid by others, including me.

By Mark Paris (not verified) on 22 Mar 2005 #permalink

I do agree that it comes down to a value judgement. I don't think there's an easy case on either side, and I do understand the concerns from the other perspective as well. I just think that, on balance, I'd rather not have the IRS have that kind of authority and oversight. I'm certainly not going to pretend that this is some earth-shattering instance of oppression. Just something I'd rather not be the way it is, with the full understanding that it does have some advantages in its favor. And I know that puts me at odds with most people who otherwise agree with me. I'm a staunch supporter of Americans United for Separation of Church and State. One of my good friends sits on the national advisory board of that organization and my group works closely with them. We are involved in litigation with them right now in the Dover, Pennsylvania ID case.

I would think that given the opportunity to perform an expensive lexis/nexis search of 200 years of US law, we would find a delicate history of determinations regarding the taxation of religious institutions and their direct involvement in politics. I can't imagine Blue Laws being anything other than church based legislation promoted and advocated for by clergy and other church leadership. Most of this nation's first universities and colleges were religious properties and as such received not only tax breaks but direct subsidies. Laws specific to sanctioning and prohibiting American Indian religious behaviors and relations were written by US Christian institutions in the later part of the 19th century. I suspect that those very church properties and activities were not taxed at the time.

We live in a period when the efforts of church based leadership are again focussed on elicting various legislative agendas from all levels of governments. These "seasons" come and go and produce all of the appropriate anxiety about the separation of church and state. Significantly altering laws, tax codes, in hopes of restricting the influence of christian political advocacy will not be effective. Freeing up regulation and restriction, opening up the debate, expanding the discussion will prove more so. Mark's worries that his "dollar" is being devalued by the tax exempt status of one group ignores that there are dollars of others who are being devalued so that Mark's views can be supported. I think we need to subsidize all points of discourse and discussion. Why aren't the properties of other 500 series groups non-taxed?? Why can't the efforts of the groups i support, though non church based, receive the same overall tax exempt benefits of churches and church properties??

Spyder, I am not ignoring the fact that certain tax-exempt organizations might carry out political activity. I suspect that many (most? all?) of them carefully separate money used for political activity from that used for their truly exempt activities. I think there is also a difference between taking a position on something (like defending environmental cases) and campaigning for specific candidates. I am not willing, because I am not familiar enough, to say that tax-exempt organizations legally or illegally undertake or do not undertake political activities that churches do not or cannot.

By Mark Paris (not verified) on 22 Mar 2005 #permalink