Thou shalt not electioneer: religious nonprofit political activity and the threat "God PACs" pose to democracy and religion.

• Author: Backer, Jonathan
• Position: Political action committees

The Supreme Court's 2010 decision in Citizens United v. FEC invalidated a longstanding restriction on corporate and union campaign spending in federal elections, freeing entities with diverse political goals to spend unlimited amounts supporting candidates for federal office. Houses of worship and other religious nonprofits, however, remain strictly prohibited from engaging in partisan political activity as a condition of tax-exempt status under Internal Revenue Code [section] 501(c)(3). Absent this "electioneering prohibition," religious nonprofits would be very attractive vehicles for political activity. These 501(c)(3) organizations can attract donors with the incentive of tax deductions for contributions. Moreover, houses of worship need not file with a government agency to begin operating and deriving tax benefits, and the IRS has shown reluctance to aggressively audit their activities. Two circuits have previously upheld the electioneering prohibition against legal challenges, but recent jurisprudential shifts expose the tax code provision to challenge under the Religious Freedom Restoration Act (RFRA), which directs courts to apply strict scrutiny to facially neutral laws that substantially burden the free exercise of religion. First, Burwell v. Hobby Lobby Stores, Inc. greatly reduced the barriers to successful RFRA claims. Second, by lifting restrictions on political speech for many other types of organizations, Citizens United magnified the burden the electioneering prohibition imposes on religious organizations. The decision also rejected compelling state interests that might have previously shielded the law from invalidation. This Note is the first analysis of the electioneering prohibition's vulnerability in this new legal climate. Despite these significant developments, this Note ultimately concludes that the electioneering prohibition can survive RFRA challenges because the prospect for widespread use of religious organizations as conduits for political activity undermines the values reflected in Establishment Clause jurisprudence.

TABLE OF CONTENTS INTRODUCTION I. THE ELECTIONEERING PROHIBITION IN CONTEXT A. Historical Origins of the Electioneering Prohibition B. From Super PACs to God PACs C. The Continued Importance of the Electioneering Prohibition II. THE ELECTIONEERING PROHIBITION SUBSTANTIALLY BURDENS FREE EXERCISE RIGHTS A. Past Application of RFRA to the Electioneering Prohibition.. B. Hobby Lobby's Deferential Burden Analysis C. Alternative Outlets for Political Speech Do Not Lessen the Burden III. THE ELECTIONEERING PROHIBITION ENSURES SEPARATION BETWEEN CHURCH AND STATE A. Unavailable Government Interests 1. Anticorruption Rationale 2. Government Subsidization of Partisan Political Activity B. Maintaining the Wall Between Church and State CONCLUSION INTRODUCTION

One month before the 2014 midterm elections, Dr. Jim Garlow, the pastor of Skyline Church in La Mesa, California, broke the law. At his Sunday church service, Garlow endorsed Democratic U.S. Congressman Scott Peters in California's Fifty-Second Congressional District over his openly gay Republican opponent Carl DeMaio. (1) "[Y]ou cannot have the advancing of the radical homosexual agenda and religious liberty at the same time, in the same nation," Garlow explained to his congregation. (2) While DeMaio shared many of the pastor's ideological positions, Garlow instructed his congregants to either support the Democratic incumbent or abstain from the election, warning that a DeMaio victory would mark the vanguard of a socially liberal Republican Party and the absence of a political home for Evangelical Christians. (3)

As a condition of tax-exempt status under Internal Revenue Code [section] 501(c)(3), houses of worship--like all charitable organizations--may not "participate in, or intervene in ... any political campaign." (4) A spiritual leader's endorsement of a congressional candidate from the pulpit is a textbook violation of this tax code provision, (5) known as the "electioneering prohibition." As part of an initiative called Pulpit Freedom Sunday, Garlow delivered his sermon in an act of civil disobedience, joining with other faith leaders in a coordinated effort to publicly flaunt the law and protest what they view as unconstitutional infringement on religious liberty and freedom of expression. Since 2008, over 3,800 pastors have participated in Pulpit Freedom Sunday. (6) Participating pastors send copies of their sermons to the IRS, hoping to challenge the law's validity in court. (7) Pulpit Freedom Sunday participants do not disguise their intentions. Garlow, for example, concluded his 2014 Pulpit Freedom Sunday sermon by saying, "[I]f, by chance, a member of the IRS gets this sermon and is listening, sue me." (8) More than ever before, Garlow and other opponents of the electioneering prohibition may stand poised to realize their goals. Recent Supreme Court decisions lifting restrictions on political speech (9) and granting religious exemptions to facially neutral laws (10) situate the electioneering prohibition at the epicenter of tectonic jurisprudential shifts.

Left-leaning religious entities also chafe under the restrictions imposed by the electioneering prohibition. In the aftermath of the 2004 presidential election, for example, the IRS launched an investigation against All Saints Episcopal Church in Pasadena, California after its rector, Reverend Ed Bacon, delivered an antiwar sermon two days before the election. (11) Bacon did not explicitly endorse a candidate, but depicted Jesus moderating a presidential debate and reprimanding President George W. Bush by saying, "Mr. President, your doctrine of preemptive war is a failed doctrine. Forcibly changing the regime of an enemy that posed no imminent threat has led to disaster." (12) Ultimately, the IRS concluded its investigation without penalizing the church but reiterated its position that the church had violated the law. (13) In opposing the investigation, Bacon warned, "If the IRS prevails, it will have a chilling effect on the practice of religion in America." (14)

Despite conflict between the government and both progressive and conservative religious entities over the electioneering prohibition, the Supreme Court has never examined its legality. The Tenth Circuit upheld the provision under the Free Exercise Clause, holding that the "overwhelming and compelling Governmental interest ... [in] guarantying that the wall separating church and state remain[s] high and firm" justifies any burden imposed by conditioning tax-exempt status on nonintervention in political campaigns. (15) More recently, the D.C. Circuit upheld the provision under the Religious Freedom Restoration Act (RFRA), a statute that requires courts to apply strict scrutiny to facially neutral federal laws that substantially burden the free exercise of religion. (16) The court held that the electioneering prohibition does not trigger RFRA scrutiny because it does not substantially burden the free exercise of religion. (17)

But since courts last examined the tax code provision, the Supreme Court has invalidated both state (18) and federal (19) laws barring corporations from intervening in electoral politics. These laws resemble the electioneering prohibition in substance, if not underlying rationale. (20) Additionally, the Supreme Court granted closely held corporations RFRA exemptions from the Patient Protection and Affordable Care Act (ACA)'s contraceptive mandate in Burnell v. Hobby Lobby Stores, Inc., according substantial deference to the companies' characterization of the burden the law imposed on religious practice (21) and undercutting the reasoning used most recently to uphold the electioneering prohibition. (22)

Neither the Tenth Circuit nor the D.C. Circuit closely examined the purpose of the electioneering ban or weighed the importance of its goals against free exercise values. A more pointed exploration of the issue offers an interesting example of the delicate legal balance required when governmental interests and religious practice intersect. From the earliest days of the republic, religion has played a crucial role in American civic life. Alexis de Tocqueville described religion as a salve to the isolation and uncertainty inherent in individual liberty (23) and as a force capable of encouraging free people to forgo self-interest in favor of the collective good. (24) On the other hand, Thomas Jefferson and James Madison recognized the capacity of religion, especially when supported by the machinery of the state, to be a destructive source of division antithetical to democratic principles. (25)

Today, public opinion exhibits the same ambivalence. Religion plays an undeniable and important role in spurring many citizens to social consciousness and action. About two-thirds of Americans believe houses of worship contribute to solving important social problems, and more than three-quarters believe that such institutions strengthen morality in society. (26) Faith leaders have played central roles in the social movements that have reshaped American history and sociopolitical reality. But Americans also believe religion should play a limited role in political discourse, with nearly two-thirds opposing houses of worship endorsing political candidates and more than half opposing religious leaders' involvement in politics entirely. (27)

Accordingly, public law reifies the tension evident at the republic's founding and persisting in the polity today. At the constitutional level, the Free Exercise Clause (28) allows for the flourishing of religious life that Tocqueville valued, while the Establishment Clause (29) prohibits the entanglement between government and religion that Jefferson and Madison feared. (30) At the statutory level, tax exemptions and deductions incentivize the proliferation of religious institutions, but the electioneering prohibition disables those same...