Pulpit Freedom Sunday: A Misguided Attempt to Politicize Religious Organizations

On Sunday, Sept. 28, 2008, 33 pastors engaged in partisan electioneering from the pulpit as part of Pulpit Freedom Sunday, an initiative launched by the Alliance Defense Fund (ADF), a conservative legal alliance. ADF wants to challenge the constitutionality of the ban on partisan electioneering by religious and charitable organizations exempt under Sec. 501(c)(3) of the tax code. Violation of this rule can result in loss of tax-exempt status. This ill-advised effort threatens the nonpartisan nature of the nonprofit sector. It would give religious organizations rights non-religious organizations do not have, create an indirect taxpayer subsidy for partisan sermons, and open new conduits for inserting soft money into election outcomes.

ADF Overstates the Problem

A statement from ADF Senior Legal Counsel Erik Stanley said, "Pastors have a right to speak about Biblical truths from the pulpit without fear of punishment. No one should be able to use the government to intimidate pastors into giving up their constitutional rights." We could not agree more. However, pastors are already free to speak out on the moral or social issues of the day, and even lobby, from the pulpit. The prohibition against partisan electioneering only applies to intervention for or against candidates using the organization's resources. Pastors are free to endorse or oppose candidates as individuals. IRS , Revenue Ruling 2007-41 states that the "political campaign intervention prohibition is not intended to restrict free expression on political matters by leaders of organizations speaking for themselves, as individuals." So although ADF's materials state this project is not about endorsing or opposing candidates or political parties, the rest of the speech they want to protect is already legal under tax law.

Endorsements from Pulpit Diminish the Nonpartisan Sector and Politicize Religious Organizations at Taxpayers' Expense

The participants in this initiative want to endorse or oppose candidates from the pulpit. There are major drawbacks to this idea, in addition to constitutional arguments about separation of church and state. The prohibition on intervening in elections protects the integrity and independence of the religious and charitable sector. It shields it from pressure to donate to candidates or engage in political quid pro quo in order to achieve public policy goals. It also prevents individuals from using tax-deductible contributions to charities to avoid campaign finance laws or advance their personal partisan political views. Allowing religious institutions to support or endorse candidates will open a floodgate of money pouring into third-party conduits — the churches, synagogues and mosques — to influence election outcomes without the appropriate disclosure or contribution limits. In the end it will vitiate the independent, nonpartisan nature of religious organizations.

It is highly appropriate for religious organizations — and charities — to be involved in the election process by hosting debates, registering voters, recruiting poll workers, and protecting voter rights. These types of nonpartisan activities can be undertaken with tax-deductible contributions. But religious organizations and charities, in general, should not use tax-deductible contributions to support or oppose a candidate.

Some have argued that it is appropriate for a pastor to endorse or oppose a candidate from the pulpit because the organization is not spending it tax-deductible contributions when giving a sermon. Tax-deductible tithes and offerings, however, are used to build religious organization's buildings and maintain ongoing operations. When a religious leader speaks from the pulpit, he or she is using the congregation's resources. Moreover, the religious leader is a salaried employee of the nonprofit institution. By freely choosing to accept a tax-exemption from the government, and deductible contributions from donors, the group agrees to restrictions on partisan participation in elections that ensure that taxpayers are not subsidizing partisan political activities. If a religious organization desires to engage in partisan electioneering, it could organize under another section of the nonprofit tax code, such as a 501(c)(4) social welfare organization where donations are not tax deductible, but the organization remains exempt from taxation. As a 501(c)(4) organization, the church can support or oppose a candidate, so long as those activities are not the organization's primary activity.

Non-Religious Organizations Should Have Equal Speech Rights under Tax Laws

ADF's position would give religious groups rights that other 501(c)(3) organizations do not have. That would cause constitutional problems, as the government would be favoring religious entities over non-religious entities, which would possibly violate the Establishment Clause and raise equal protection concerns. Furthermore, the U.S. Supreme Court has held that the free exercise clause "requires the state to be neutral in its relations with groups of religious believers and nonbelievers." (Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947)) Extending the right to make endorsements to non-religious organizations is not the answer, however, for the same considerations we cited above. It would only serve to further undermine the nonpartisan sector and expand the reach of taxpayer subsidy for partisan activity.

Clear Rules Would Remove Confusion about Issue Advocacy Rights

Pulpit Freedom Sunday, and the issues surrounding it, illustrates the need for a bright-line IRS rule defining what constitutes permissible issue advocacy and what actions constitute partisan electioneering. While the actions of some of the participants in "Pulpit Freedom Sunday" were such clear violations, others appeared to walk a fine line that is not so easily identifiable. If religious organizations and other 501(c)(3) organizations operated under clear rules defining what is permissible, they may feel less constrained to discuss moral or social issues of the day.

Consistent Enforcement Requires IRS Action on Pulpit Freedom Sunday

If the IRS does not investigate Pulpit Freedom Sunday participants it will open itself up to allegations that it favors their political views over groups such as All Saints Church that have been critical of Bush administration policies. The IRS found that a 2004 All Saints' anti-war sermon violated the prohibition on intervention in elections, even though the sermon did not oppose re-election of President George W. Bush or endorse his opponent. Inaction by the IRS would also encourage others to willfully violate the IRS' prohibition.

Conclusion

ADF's misguided attempt to overturn the ban prohibiting religious organizations from engaging in partisan electioneering is not just a question of separation of church and state. It raises serious questions about the integrity and independence of the nonpartisan sector, taxpayer support for partisan political conduct and a preference for religious organizations over non-religious organizations. It also illustrates the need for clearer IRS rules on what is and is not allowed. In the meantime, the IRS must thoroughly investigate the actions surrounding Pulpit Freedom Sunday.

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