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IRS still dragging its feet on challenges to religious pulpit electioneering

Published: Wednesday, Aug. 5 2015 5:13 a.m. MDT

In this Jan. 25, 2007 file photo, Freedom From Religion Foundation co-president Annie Laurie Gaylor stands in front of the door at the foundation headquarters in Madison, Wis. In the aftermath of November's election, the FFRF are arguing that the tax agency has been negligent in enforcing limits on tax-exempt churches directly engaging in electioneering. (Morry Gash, ASSOCIATED PRESS) In this Jan. 25, 2007 file photo, Freedom From Religion Foundation co-president Annie Laurie Gaylor stands in front of the door at the foundation headquarters in Madison, Wis. In the aftermath of November's election, the FFRF are arguing that the tax agency has been negligent in enforcing limits on tax-exempt churches directly engaging in electioneering. (Morry Gash, ASSOCIATED PRESS)

In May 2008 a pastor in Warroad, Minn. stood at the pulpit and told his followers how to vote. “If you are Christian, you cannot support Hillary Clinton or Barack Obama,” the pastor said, according to the local paper. “Both Hillary and Barack favor the shedding of innocent blood and the legalization of the abomination of homosexual marriage.”

The pastor emailed the article to Americans United for the Separation of Church and State, a liberal watchdog group, taunting its leaders to come after him.

Under current law, churches and other tax-free charities can engage in issue advocacy and even advocate for or against ballot propositions. But they cannot endorse a specific candidate. The pastor was out to test that limit.

“I am writing you to let you know that I preached a sermon in my church on Sunday, May 18, 2008,” the pastor wrote to Americans United. “As you can see from the attached newspaper article, I specifically made recommendations as to who a Christian should vote for.

“I have read in the past about how you have a campaign to intimidate churches into silence,” he continued. “I am letting you know that I will not be intimidated into silence when I believe God wants me to address the great moral issues of the day, including who will be our next national leader.”

This pastoral taunt was part of the first wave of “Pulpit Freedom Sundays,” sponsored by the Alliance Defending Freedom, an Arizona-based religious freedom group. Americans United took the bait, filing a complaint with the IRS, pointing out the church’s violation of electioneering rules.

Then they waited. And waited. Three years later, the IRS has still not responded to Americans United and remains frozen on the issue. Meanwhile, ADF repeated its project in 2010 and again in 2012, with ministers encouraged to campaign for candidates from the pulpit. In 2012, ADF claims, 1,500 church leaders signed up.

With three national campaigns now in the rearview mirror since 2008, ADF and Americans United have become unlikely allies. Both want the IRS to enforce the rule preventing tax-exempt churches from speaking out on political campaigns. Both groups expect the matter to end up in court. But until the IRS acts, everyone remains in limbo.

The controversy has deep implications for religious liberty, as churches and the state rub shoulders in the space where belief blends into advocacy and advocacy into politics.

“We have to wait for the law to be applied, which is why Pulpit Freedom Sunday is important,” said Erik Stanley, at ADF attorney behind the effort. “We can’t just go out and challenge it on its face right now.”

Where is the referee?

Is the electioneering restriction constitutional? The IRS is lying low, and the courts can't answer the question until someone gets in trouble. The fighters are ready to go. All they need is a referee.

In one corner is Stanley, ADF's senior legal counsel. “No one would suggest a pastor give up his church’s tax-exempt status if he wants to keep his constitutional protection against illegal search and seizure or cruel and unusual punishment,” Stanley said in a statement this fall. “Likewise, no one should be asking him to give up his church’s tax-exempt status to be able to keep his constitutionally protected right to free speech.”

In addition, Stanley argues the religions warrant special protection both under the constitution and under federal law. He points to the Religious Freedom Restoration Act, which sets a high bar against federal intervention with religion.

In the other corner is Barry Lynn, executive director of Americans United, who argued in an interview with the Deseret News that "the extremely valuable benefit of tax exemption can be granted with the rather modest string attached to not intervene in partisan political campaigns."

The impasse that drove off the referee began in 2008, when a U.S. District Court ruled that the IRS had improperly audited the Living Word Christian Center in Brooklyn Park, Minn., whose pastor had endorsed Minnesota Rep. Michele Bachmann from the pulpit.

When the IRS began auditing the church’s finances, the church pointed to the 1983 Church Audit Procedures Act, which required high-level IRS authorization to audit a church — just one level below the IRS commissioner.

The 1984 law was motivated by fears that politicized IRS audits would be used to intimidate and silence church leadership, violating two key elements of the First Amendment — the free exercise of religion clause and the freedom of speech clause.

When the court reversed the IRS action, the IRS began working on new church audit rules, hunkering down in the meantime. By November of 2009, Americans United called out the IRS in a letter on the new rule, noting that enforcement had been dropped. To this day, the new IRS audit rule remains unfinished.

Is it enforceable?

One reason the referee seems frozen is that current law can be hard to enforce and lead to complicated evasions.

For instance, in October 2012, the famed minister Billy Graham took out a full-page ad in the New York Times, which everyone understood as an endorsement of Mitt Romney.

“I believe it is vitally important that we cast our ballots for candidates who base their decisions on biblical principles and support the nation of Israel,” Graham wrote in the ad. “I urge you to vote for those who protect the sanctity of life and support the biblical definition of marriage between a man and a woman.”

But Graham did not really need to avoid naming names, if he spoke in his own voice and paid the ad from his own pocket. Ministers are allowed to speak out personally. But they cannot do so representing a tax-exempt church, and the church cannot pay for the ad. Churches are allowed to urge policy positions, but not endorse specific candidates.

In its 2009 Tax Guide for Churches and Religious Organizations, the IRS offered scenarios that would pass muster. If a minister endorsed a candidate, the IRS wrote, and the candidate printed an ad naming the minister and tying him to the church for identification purposes, then “the ad does not constitute political campaign intervention by Church.”

Still in limbo

Such complex rules, critics argue, tie religious leaders in knots and lead to disingenuous maneuvers to skirt the law.

The enforceability problem came to the surface when Senator Charles Grassley (R-IA), ranking member of the Senate Finance Committee, had his staff review the policy over a three-year period.

When the study concluded in 2011, Grassley’s staff concluded that the “electioneering” rules restricting churches and other nonprofit organizations should be repealed because the IRS cannot properly enforce them.

“The IRS is required to draw on its limited resources to police a provision that has no express purpose that can be deduced from the legislative history, is harsher than what is necessary to address legitimate policy concerns, is vague (and therefore difficult for charities to comply with and for the IRS to enforce), and rarely results in any punishment being imposed on non-complying organizations or excise tax revenues being collected for the U.S. Treasury,” Grassley’s staff wrote.

Sen. Grassley has also asked a commission spearheaded the Evangelical Council for Financial Accountability to develop recommendations. EFCA is a group that audits and vouches for the financial transparency of churches. The commission, which has already issued a report on internal church finances and tax policy, will begin working on the political activity question in April, Stanley said.

Stanley is under no illusions about religious leaders being given carte blanche when it comes expressing political opinions. “But there should at least be the ability to say something,” he argues, “ and the absolute prohibition is unconstitutional.”

So for now the line remains unclear and ADF and Americans United remain in limbo, waiting for the IRS to either enforce the current law or for Congress to change it.

Copyright 2015, Deseret News Publishing Company