June 2016 Church & State - June 2016

The Persistence Of Pulpit Politicking

  Simon Brown

During a sermon in May 2008, the Rev. Gus Booth made absolutely sure his congregation knew precisely which presidential candidates he did not want them to back.

“If you are a Christian, you cannot support Hillary Clinton or Barack Obama.…Both Hillary and Barack favor the shedding of innocent blood (abortion) and the legalization of the abomination of homosexual marriage,” Booth, senior pastor of Warroad Community Church in Minnesota, said at the time.

Ultimately Booth’s commands were for naught, of course; Obama, who at the time was a Democratic senator representing Illinois, easily defeated U.S. Sen. John McCain (R-Ariz.) that fall to win his first term as president. While the specifics of Booth’s comments were inconsequential, telling his flock for whom not to vote turned out to be a very serious problem – the repercussions of which continue to this day.

As it happened, 2008 was something of a watershed year in the relationship between the Internal Revenue Service (IRS), houses of worship and politics. Since 1954, a provision of the Internal Revenue Code has blocked all non-profits with 501(c)(3) status from endorsing or opposing candidates for public office. This fact troubled a handful of politically minded clergy on both ends of the ideological spectrum for decades, but for more than 50 years there was not any sort of coordinated effort by pastors to defy the IRS.

Then, in the months leading up to the presidential election in 2008, a group of far-right pastors teamed up with a prominent Religious Right legal organization, Alliance Defending Freedom (ADF), to ignore federal law against campaign intervention by houses of worship.

Following that stunt, which has since become an annual occurrence, it appeared that the IRS took no action to punish those pastors who openly defied the law. And thanks to a series of legal and political setbacks, it remains unclear what – if anything – the IRS intends to do in order to ensure that churches do not become cogs in political machines. 

The Religious Right and its allies have long dreamed of controlling public policy in the United States through a disciplined voting bloc made up primarily of the millions of fundamentalist Christians who attend right-wing evangelical churches. But standing in the way of that grand plan for more than 60 years has been the Internal Revenue Code restriction on partisan political speech from the pulpit.

The origins of the “no politicking” rule stretch back to 1954 when then-U.S. Sen. Lyndon B. Johnson (D-Texas) backed an amendment to the tax code that said, “Under the Internal Revenue Code, all section 501(c)(3) org­anizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.”

The legislative history on this matter is rather thin. As Robert W. Tuttle, a professor of law and religion at George Washington University, explained in a 2008 interview with Pew Research Center, it’s not entirely clear what Johnson and his allies had in mind when they approved the law.

“Many members of Congress…voted for the amendment because they were concerned about non-profit organizations funding their opponents’ political campaigns,” Tuttle said. “But because there was little debate over the amendment or how it would influence churches, we don’t know precisely why Congress enacted the amendment.”

In the absence of a detailed legislative history, there has been much speculation in the years since as to why Johnson pushed for this rule. The Religious Right and its allies have long maintained that Johnson wanted to “muzzle” non-profits in order to secure his reelection in 1954.

The narrative goes something like this: Johnson faced stiff competition from his own party that year in the form of a Texas state senator named Dudley T. Dougherty, who ran on a rabidly anti-communist platform in the vein of then-U.S. Sen. Joseph McCarthy (R-Wisc.). Two powerful anti-communist non-profits, the Facts Forum and the Committee for Constitutional Government, backed Dough­erty – a fact that rankled Johnson. In response, the future president worked to change the tax code so those two non-profits and others could not oppose him in the future.                                                     Eric W. Stanley, an ADF attorney who has for years called the pulpit politicking restriction “unconstitutional,” accused LBJ in the spring 2012 edition of the Regent University Law Review of backing the amendment for selfish and vindictive reasons.

“What is clear from this brief history of Section 501(c)(3) is that there is no principled justification for the Johnson Amendment other than political maneuvering,” Stanley claimed. “The Amendment appears to be nothing more than an attempt by a powerful senator to silence political opponents that he feared were hurting his chances for reelection.”

It is easy for Stanley and others to play armchair historian, but the reality is we simply do not know what Johnson intended. James D. Davidson, now professor emeritus of sociology at Purdue University, argued in a 1998 essay called “Why Churches Cannot Endorse or Oppose Political Candidates” that LBJ’s efforts were not without principle – even though politics were a factor.

“The provision grew out of the anti-communist frenzy of the 1950s and was directed at right-wing organizations….It was introduced by Lyndon Johnson as part of his effort to end McCarthyism, to protect the loyalist wing of the Texas Democratic Party, and win reelection to the Senate in 1954,” Davidson wrote.

In the decades following the passage of the Johnson Amendment, most of the known cases involving religious groups that ran afoul of the IRS due to political involvement were not houses of worship. (The word “known” is important here – the IRS does not comment on active investigations and rarely discusses even closed cases in this area. As a result, it is possible that some enforcement actions taken by the agency against houses of worship over the years went unreported.) 

An early example includes a 1964 instance in which a group that operated religious radio and television programs called Christian Echoes National Ministry, Inc., lost its tax exemption thanks to its participation in campaign activities. 

It was not until the late 1980s and early ’90s, however, that the Johnson Amendment became a serious thorn for houses of worship that played partisan political games. Thanks to new legislation that pushed the IRS to more closely police the activities of many tax-exempt organizations, the agency cracked down.

In 1987, then-U.S. Rep. J.J. Pickle (D-Texas) used his position as head of the House Ways and Means Oversight Subcommittee to investigate a non-profit with 501(c)(3) status for its possible role in using funds from the sale of Iran-Contra arms to assist conservative congressional candidates as well as lobby against incumbent members of congress who did not support the Contras in Nicaragua.

This led to the 1987 passage of Internal Revenue Code Section 4912, which stipulates that any 501(c)(3) organization found to have engaged in substantial lobbying will face “a tax on the lobbying expenditures of such organization for such taxable year equal to 5 percent of the amount of such expenditures.”

In the years immediately following that change in the law, the IRS became more concerned with the political activities of houses of worship, resulting in some high-profile crackdowns. These included a punishment for the Rev. Jerry Falwell’s “Old Time Gospel Hour,” which was investigated over a four-year period by the agency for unlawful political activity. In 1993, Falwell was ordered to pay the IRS $50,000 in back taxes, and the TV ministry’s tax exemption for the years 1986 and 1987 was retroactively revoked after the group was found to have engaged in partisan activity.

The most important development in the 1990s, however, was the revocation of a church’s tax exemption – thanks in part to Americans United.

During the 1992 presidential election, the Church at Pierce Creek (a.k.a Branch Ministries) took out full-page newspaper ads encouraging Christians not to vote for then-Arkansas Gov. Bill Clinton (D) on the grounds that doing so would be a “sin.”

In November of that year, AU complained to the IRS that the church had violated the tax code. After a thorough investigation, the IRS agreed and took away the church’s tax exemption. The church, represented by TV preacher Pat Robertson’s American Center for Law and Justice, subsequently sued the IRS. In 1999, a federal district court sided with the government, but the church appealed.

During the appeal, AU filed a friend-of-the-court brief in support of the IRS. In 2000, the U.S. Circuit Court of Appeals for the District of Columbia affirmed the district court’s ruling in Branch Ministries v. Rossotti that the Internal Revenue Code’s prohibitions on electioneering do not violate the free speech or religious freedom clauses of the U.S. Constitution.

Motivated in part by this success, Americans United launched Project Fair Play in 1996. The initiative has several aspects. While AU has reported 124 houses of worship and ministries to the IRS for unlawful political activity over two decades, the project also seeks to educate clergy; during major election years, including 2016, AU sends thousands of letters to religious organizations informing them what pastors can and cannot do in terms of discussing politics and encourages everyone to play by the rules so they don’t risk their tax exemption. AU also engages clergy and others through training sessions so that people are clear on what the law does and does not allow. (For more information, visit projectfairplay.org.)

After seeing success in policing pulpit politicking during the 1990s, the IRS would suffer what proved to be a crippling setback in the 2000s. In 2004, the agency launched a program of its own called the Political Activities Compliance Initiative (PACI), which reportedly investigated 80 instances of alleged church electioneering activity during the 2004, 2006 and 2008 election cycles. But just when it appeared the IRS was really flexing its muscle on this matter, a church under investigation successfully appealed an agency audit – exposing a procedural snafu that may have caused enforcement activity to halt.

That church, the Living Word Christian Center in Brooklyn Park, Minn., allegedly endorsed then-U.S. Rep. Michele Bachmann (R-Minn.), and evidence surfaced that its head pastor, the Rev. James Hammond, may have used the church for personal financial benefit.

The IRS investigated and decided to audit the church. But Living Word fought the audit and in the decision for United States v. Living Word Christian Center, which was handed down in January 2009, a federal court said the IRS had not used the “appropriate high-level Treasury official” to initiate these types of audits for years and would have to designate someone else to do so going forward.

Under federal law, houses of worship can be audited only under certain conditions. All church audits must be approved by a high-ranking IRS official. In 1998 the IRS reorganized, and some positions were eliminated. One of those positions was the bureaucrat who was charged with initiating church audits. The IRS failed to select a suitable replacement in the proceeding years.

The repercussions of that ruling were swift. In July, Booth’s Warroad Community Church was told by the IRS that a 2008 audit of the organization had been closed “because of a pending issue regarding the procedure used to initiate the inquiry.” 

And that wasn’t the only difficulty in 2008-09 for the IRS: In the fall of 2008, ADF launched “Pulpit Freedom Sunday,” which openly encourages Christian clergy to endorse or oppose candidates for office. ADF hopes the IRS will revoke the tax exemption of a participating church and will use that as an opportunity to challenge the constitutionality of the Johnson Amendment in court.

The stunt, which started with 33 participants in 2008, has been held annually, and ADF claims that 2,032 pastors have taken part in it since the beginning. Critics, including Americans United, have expressed skepticism over that number, however, noting that some participating pastors may think they are defying the IRS simply by speaking about political issues and some of them never actually made a formal endorsement.   

While some call Pulpit Freedom Sunday “civil disobedience,” others call it breaking the law. But what does the IRS say? We still don’t know. The agency has said it is aware of Pulpit Freedom Sunday, yet it has not taken any action against the participants, at least not that it has announced publicly.

This is likely because the agency has struggled to revise its audit procedures. In 2009, the IRS offered a proposal that included new protocol for investigating houses of worship. But that submission has yet to be finalized; and even so, critics have said the agency still failed to select the “appropriate” official to initiate church-tax inquiries.

From there, things somehow got worse. In 2013, the IRS Exempt Organizations Division was accused by some lawmakers of unfairly targeting conservative organizations. As it turned out, the scandal was largely overblown. The Treasury Inspector General for Tax Administration, which is responsible for IRS oversight, found that 82 percent of organizations with “Tea Party,” “Patriots,” or “9/12 Project” in their names that were audited between May 2010 and May 2012 “had indicators of significant political campaign activity in their application files.” Therefore, the Inspector General said, these groups “would have been properly selected for additional scrutiny” even if the IRS had been using activities-based criteria rather than going off of names or policies.

Ultimately, no charges were filed, but Republican lawmakers held theatrical hearings and more or less bullied the IRS into shying away from auditing any tax-exempt groups for political activity.

Even before that, things weren’t going well in this area of tax enforcement. As recently as 2012, an IRS official said that the agency was “holding any potential church audits in abeyance” while it revises its regulations. An IRS spokesman later denied that claim to NBC News, but it remains unclear which agent told the truth. (The IRS is notoriously tight-lipped about speaking to the media.)

Amid this growing uncertainty over how the IRS would treat houses of worship that violated the tax code, one group that opposes pulpit politicking tried to force the IRS’s hand. In July 2014, the Wisconsin-based Freedom From Religion Foundation (FFRF) said it reached a “settlement” in Freedom From Religion Foundation v. Miller – a lawsuit it filed in 2012 to compel the IRS to enforce the law. This led to allegations from the Religious Right that the IRS had cut a “secret deal” with FFRF and would soon crack down on churches involved in unlawful politicking.

The reality was quite different. Journalist Sarah Posner reported that FFRF voluntarily withdrew the lawsuit because the group became convinced that the IRS does in fact have a mechanism in place to investigate houses of worship that break the law by engaging in partisan politicking.

FFRF produced a letter that the IRS wrote to officials at the U.S. Department of Justice dated June 27, 2014. The missive states that the IRS “has processed several cases invol­ving churches using procedures designed to ensure that the protections afforded to churches by the Church Audit Procedures Act are adhered to in all enforcement interaction between the IRS and churches.”

The IRS also said it has established a “Political Activities Referral Committee” (PARC) to investigate these allegations. PARC is up and running and has determined “as of June 23, 2014, 99 churches merit a high priority examination” for partisan political activity undertaken during the years 2010-13.

While it remains difficult to say how the IRS intends to handle flagrant violations of the tax code by houses of worship going forward, it is much clearer how the majority of clergy and the American public feel about this issue: They oppose pastor endorsements from the pulpit. A 2012 survey taken by the Pew Forum on Religion and Public Life found that 66 percent of respondents don’t want houses of worship to endorse or oppose candidates for public office.

Another poll taken that year revealed that pastors themselves are highly against partisan activity as well. According to a report by LifeWay Research, the research arm of the Southern Baptist Convention, a whopping 87 percent of 1,000 Protestant pastors polled disagreed that clergy should endorse candidates in church. This included 91 percent of mainline protestant clergy surveyed and 86 percent of evangelical ministers. Even 82 percent of Republicans said they were against the idea.  

Among those clergy who have no trouble playing by the rules is the Rev. J.P. Hong, lead pastor at Culmore United Methodist Church in Falls Church, Va. Hong told Church & State that he opposes clergy endorsements of candidates on both a practical and a moral level.

“All persons have the inalienable right to free speech, including the right to support and endorse political candidates whomever they favor,” he said. “The right of endorsement, however, is constrained when clergy speak from the pulpit, or elsewhere, in their capacity as spiritual leaders and representative-heads of faith organizations. As to how, most commonly cited is the threatened loss of non-profit tax-exempt status. Yes, money matters, even to those who store up treasures in heaven.”

Then there is the other argument against campaign intervention.

“But there ought to be, and is, a moral and ethical reason for this constraint as well,” Hong noted. “Humility and forgiveness are common disciplines shared across faith traditions. Just the other day, I heard a friend preach on a litany of biblical characters God chose to redeem and work through, despite major flaws and foibles. God just might work through… [Donald] Trump or Hillary [Clinton]… or whomever. This doesn’t mean ‘toss a coin,’ but it can mean, ‘everyone deserves a chance to prove us wrong.’”

Unfortunately, far too many preach­ers are unable to follow Hong’s example. And in what will clearly be a contentious political season this fall, it’s possible that more clergy than ever will be drawn into the partisan fray. Violations could occur on both sides of the aisle. Democrat Hillary Clinton is a frequent target for far-right churches, while some left-leaning churches are alarmed at the rise of Republican Donald Trump.

Exactly what all of this means for church-state separation, and how the IRS intends to respond, remains unknown. Americans United will be watching closely – and you should be, too.      

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