The politics of faith: rethinking the prohibition on political campaign intervention.

AuthorTotten, Mark

INTRODUCTION

Recent attention to the role of religion in electoral politics has kindled new interest in what a church (1) can say and do during an election season. Under federal tax law, churches and other charitable organizations receiving favorable tax treatment under section 501 (c)(3) (2) cannot "participate in, or intervene in ... any political campaign." (3) The Internal Revenue Service (IRS) and the courts have interpreted this ban as both broad and absolute. (4) It reaches not only the use of funds--an important means of regulating campaign finance--but also what a religious leader might say from the pulpit. Interpreting the general rule, the IRS draws a distinction between acceptable issue advocacy and unacceptable campaign intervention judged by a "facts and circumstances" (5) test that encourages silence on the most pressing issues of the day. Moreover, for the first time ever, the IRS has launched an organized effort to enforce this prohibition, especially against churches. (6) In February 2006 the IRS issued its final report (7) on a pilot enforcement program, the Political Activities Compliance Initiative (PACI). Of the 110 organizations investigated, 43% were churches. (8) The IRS expanded the program for the 2006 mid-term elections, toward the end of providing a rapid, targeted response to alleged violations. (9) In practice, this broad and absolute prohibition, together with the government's new effort to enforce it, places an unacceptable restraint on faith.

One of the more visible fruits of this effort is the investigation of All Saints Episcopal Church, one of Southern California's largest and most liberal congregations. (10) The IRS has warned the church that it risks losing its tax-exempt status on account of a sermon delivered a few weeks before the 2004 election. The sermon described an imaginary debate between Jesus on the one hand and Senator Kerry and President Bush on the other. (11) While disavowing any intention to tell congregants how to vote, the rector criticized both candidates, saving his harshest words for the President. He concluded by urging the congregation to "vote your deepest values." This new willingness to enforce the prohibition against churches has forged an unusual alliance in opposition that spreads across the political and theological spectrums. (12)

I argue for a limited exemption from this prohibition for religious congregations. Several scholars have criticized the prohibition in the past. (13) Building on this discourse, this Article makes two distinct contributions. First, it offers an account of the unique character of faith as both total and communal, setting faith communities apart from other charitable organizations and sometimes demanding different treatment. Second, this Article looks to Congress and not the courts for relief. Most critics search for a judicial remedy, either as a matter of constitutional law under the Free Exercise Clause or under the Religious Freedom Restoration Act. (14) Relief from the courts, however, is unrealistic in light of controlling Supreme Court precedent. Moreover, the important policy concerns at stake and the potentially broad impact of an exemption make the legislature especially suited for this task. Toward this end I sketch a legislative proposal that seeks to balance the twin goals of removing governmental restraint on the practices whereby a religious community discerns how to live out its faith in the world, while at the same time preserving the important goal of regulating campaign finance. A critical look at the rationales supporting the prohibition opens up a space to craft a more narrow rule. Part I describes the prohibition and the rationales behind it. Turning to a critical assessment, Part II examines several problems with the prohibition, including its flawed rationales, its unacceptably vague standard, and the undue restraint it places on faith. Finally, Part III argues in support of a statutory exemption and sketches what this exemption might look like.

  1. THE PROHIBITION AND ITS RATIONALES

    1. SCOPE, PENALTY, AND ENFORCEMENT

      Section 501(c)(3) of the Internal Revenue Code identifies one set of tax-exempt organizations, primarily those "operated exclusively for religious, charitable, scientific ... literary, or educational purposes." By virtue of their status, these organizations are both tax-exempt and qualify to receive tax-deductible donations. (15) Furthermore, while most organizations must file for tax-exempt status and receive IRS approval, churches are automatically exempt if they satisfy the general terms of section 501(c)(3). (16) These terms include two restrictions placed on all 501(c)(3) organizations. In addition to barring "substantial lobbying," (17) the statute also states that a charitable organization must "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." (18)

      The prohibition on political campaign intervention is wide-ranging. As the IRS recently explained: "Political campaign intervention includes any and all activities that favor or oppose one or more candidates for public office." (19) According to the regulations, the prohibition covers not only "direct," but also "indirect" forms of intervention (20) in national, state, and local campaigns. (21) Forbidden activities include, but are not limited to, "the publication or distribution of written or printed statements or the making of oral statements on behalf of or in opposition to such a candidate." (22) The church's teaching and moral deliberations are regulated the same as any other charitable organization. The regulations do distinguish between issue- and candidate-based advocacy, (23) allowing for the former. As we will see, however, this distinction often proves illusory. The IRS has also made clear that the prohibition is absolute. Although the restriction on lobbying allows charitable organizations to engage in limited efforts to influence legislation, the prohibition against political campaign intervention admits no exceptions. (24)

      Judicial decisions (25) and several IRS revenue rulings (26) have further clarified the scope of the prohibition, but neither offers much specific guidance as to how the prohibition applies to churches. Due to the sensitive issues at stake, only once in its history has the IRS revoked a church's 501(c)(3) status. (27) Through various publications, however, the IRS has made clear that the prohibition applies equally to religious congregations. (28) The underlying principle is that faith communities cannot say or do anything that suggests bias among the candidates. In addition to barring the transfer or use of funds on a candidate's behalf, the prohibition affects religious congregations in three main areas.

      First, the prohibition regulates candidate appearances. A congregation may invite a political candidate to speak at its events, but it must follow several guidelines. These include ensuring that no fundraising occurs and expressly stating that the event does not indicate support for or opposition to the candidate. (29) The church must provide an equal opportunity to other political candidates seeking the same office. (30) Second, the prohibition governs the issuance of voter guides and other printed materials related to a candidate. (31) The guides must have as their purpose to educate voters and cannot directly or indirectly favor or oppose candidates. (32) Scorecards that compare the candidates' positions to the congregation's own shared values or offer an evaluation of any kind may violate the rule. (33) Furthermore, the guide cannot focus on issues of special concern to the community, absent inclusion of a broad range of issues that the candidates would address if elected to office. (34) Whether that list of special concerns is abortion, marriage laws, and school vouchers, or the environment, minimum wage laws, and foreign aid, a church violates the law if it gives special attention to the candidates' positions on issues about which the community cares the most.

      Lastly, the prohibition restricts speech within the faith community, especially statements by religious leaders during a sermon or other teaching that might favor or oppose a particular candidate. (35) The limits described in the context of voter guides and other printed material apply in this context, as well. The statute prohibits not only endorsements, but any speech that might favor or oppose a particular candidate. (36) Furthermore, the prohibition extends not only to efforts by the congregation to influence the public, but also reaches discourse within the community, where members together discern how they might live out their faith in the world. (37) Again, the IRS has made clear that the statute does not prohibit the community from speaking to important issues of public interest, (38) even taking strong and controversial stands. Addressing these issues in a manner that conveys either direct or indirect support of or opposition to a candidate, however, violates the law.

      Churches and other faith communities that violate this prohibition risk losing both their tax-exempt status and their ability to receive tax-deductible contributions. (39) Furthermore, the IRS may choose to place an excise tax on the church and on the leaders responsible for any political expenditures. (40) Minimally, IRS action will involve an audit that may prove both lengthy and intrusive. The only instance where the government has revoked a church's 501(c)(3) status was the Church at Pierce Creek, which purchased full-page advertisements in USA Today and the Washington Times four days before the 1992 presidential election. In opposition to then-Governor Clinton, the ads warned: "Christians Beware." (41) The growing role of religious congregations in electoral politics, however, coupled with efforts by...

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