February 2016 Church & State - February 2016

Justice Department Appointee Blocked Over Stand Opposing Church-Based Politicking

  AU admin

A top tax attorney who has been appointed to an important position at the U.S. Department of Justice is being blocked, apparently because he has expressed support for a federal law that bans partisan politicking by houses of worship.

A year ago, President Barack Obama nominated Cono Namorato to serve as assistant attorney general in the U.S. Department of Justice’s tax division. The 73-year-old is currently a tax lawyer with a private firm in Washington, D.C., but he spent two years earlier in his career as director of the IRS Office of Professional Responsibility.

Initially, it seemed as if lawmakers were poised to approve Namorato. The Chicago Tribune reported that he impressed members on both sides of the aisle during a hearing before the Senate Judiciary Committee in July, but despite that he never received the committee’s confirmation.

It seems the nomination hit a snag because at least one senator had some concerns about Namorato’s views on church-based politicking.

Under federal law, houses of worship and other non-profit groups may not intervene in elections by endorsing or opposing candidates for public office. Namorato supported this position in 2008 when he signed a joint letter with other attorneys opposing efforts by Alliance Defending Freedom (ADF), a legal group founded by radio and television evangelists, to draft pastors into an effort to defy the law by issuing candidate endorsements from the pulpit.

ADF apparently hoped to spark a test case by getting a church’s tax exemption revoked for partisan politicking. Namorato and some of his colleagues at the Washington, D.C., law firm of Caplin & Drysdale opposed the gambit, pointing out that it is unethical for lawyers to urge their clients to violate the law.

“[ADF was] explicitly soliciting churches across America to violate Federal law,” read the letter. In doing so, the group engaged in “incompetent and disreputable conduct” because it encouraged law breaking.

The letter also called on the IRS to punish ADF attorneys involved with this activity.

“[I]mmediate and appropriate action [should be taken] to address this flagrant disregard of the ethical rules for practice before the IRS,” the letter read.

The Tribune reported that U.S. Sen. Charles Grassley (R-Iowa), head of the Senate Judiciary Committee, asked Namorato a series of written questions following the July hearing, seeking information on how Nam­orato would police church sermons. In response, Namorato said the Justice Department has a limited role to play in monitoring church speech, the Tribune reported.

Grassley also asked Namorato how he currently feels about ADF’s overture to pastors, known as “Pulpit Freedom Sunday.”

“If I am confirmed and the IRS were to determine that a church or pastor violated the restrictions on political activity and referred the matter to the Tax Division, I would ensure that the merits of the litigation were evaluated in the same manner as any other referral,” Namorato wrote.

Namorato added that he didn’t think ADF attorneys broke the law but said he remains troubled by the group’s “active solicitation of clients for the purpose of assisting them in committing a violation of law.”

Namorato’s appointment remains in limbo.

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