[*PG903]PROHIBITION IN SEARCH OF A RATIONALE:WHAT THE TAX CODE PROHIBITS; WHY; TO WHAT END?
Abstract: Each Presidential election renews the thorny debate over the appropriate role of churches and other religious organizations in American political life. Although churches are subject to other restraints on political activity, the prohibition on church political activity under section 501(c)(3) of the Internal Revenue Code is the harshest in terms of penalties. Faced with the extraordinary scope of the prohibition as interpreted by the IRS, and perceived non-enforcement of egregious violations, churches tend toward one or two extremes: they either ignore the prohibition and endorse candidates or they avoid legitimate involvement with important policy issues.
[R]eligion . . . has no sphere, and the river of serious belief cannot be dammed. The waters will flow where the waters will flow, because the Lord will go where the Lord will go.1
In quadrennial cycle, Presidential elections renew the thorny debate over the appropriate role of churches and other religious organizations in American political life.2 The 2000 election cycle in particular, witnessing the selection of Senator Joe Lieberman as the first Jewish candidate on a major party Presidential ticket, placed the issue front and center. This article explores, in the context of the larger debate, the prohibition on church political activity under section 501(c)(3) of the Internal Revenue Code (“Code”), its genesis, utility, and appropriateness.
[*PG904] Although churches are subject to other restraints on political activity—the Federal Election Campaign Act (FECA) and relevant restrictions under state and local law—the Code’s prohibition is the most restrictive and the harshest in terms of penalties.3 Since the political activity prohibition is deemed absolute, any violation risks revocation of church tax-exempt status and consequent loss of deductible contributions.4 In addition, the IRS may impose excise taxes under section 4955 with respect to political expenditures made in contravention of the political activity prohibition.5 The IRS may also seek an immediate determination and assessment of income and excise taxes due on account of flagrant political expenditures, and bring injunc[*PG905]tive action to bar further political expenditures in a United States district court.6
In the 1913 income tax provisions, an accommodation was made for exemption from taxation of religious, charitable, educational, and scientific organizations.7 This initial exemption, however, was not conditioned on abstinence from political campaign activity.8 In fact, the express prohibition on political campaign activity did not become part of the Code until 1954. This provision, which has had such significant impact on the role of tax-exempt organizations in the political sphere, was added without the benefit of hearings, testimony, or comment from affected organizations by then-Senator Lyndon B. Johnson during Senate floor debate on the 1954 Code. It is likely that, by means of the prohibition, LBJ sought to insure that the tax-exempt [*PG906]organizations that had supported Dudley Dougherty, his challenger in the 1954 primary election, would not do so again.9
The statutory language of section 501(c)(3) prohibits churches from participating or intervening in political campaigns on behalf of or in opposition to any candidate for public office.10 The regulations recite that “action organizations”—those that participate or intervene, directly or indirectly, in any political campaign on behalf of, or in opposition to, any candidate for public office—are not operated exclusively for exempt purposes and cannot qualify for tax exemption under section 501(c)(3).11 The regulations define a “candidate” as one who offers himself or is proposed by others as a contestant for an elective public office, whether national, state or local.12 Thus, a church may support or oppose a candidate for non-elective public office—a Supreme Court justice—without jeopardizing its tax-exempt status.13
When an individual “offers himself, or is proposed by others,” and thus becomes a candidate for elective public office must be determined on the basis of all relevant facts and circumstances. Clearly, an individual who has announced his intention to seek election to public office is a candidate. Additionally, even an individual who has not formally announced an intention to seek elective office—and even if he never actually becomes a candidate—can in appropriate circumstances be considered a candidate for purposes of section 501(c)(3).14 Further, third parties may propose an individual as a candidate and take steps to urge his election. However, the mere fact that an individual is a prominent political figure is alone insufficient [*PG907]to render him a candidate. “Some action must be taken to make one a candidate, but the action need not be taken by the candidate or require his consent.”15
Despite the paucity of definitive guidance from either the legislative history or IRS regulations, the political activity prohibition has been interpreted broadly to include a range of activity beyond the obvious. A church may not, among other things, make statements that support or oppose a candidate for elective public office, slate of candidates, political party or political action committee16 (“PAC”) in a sermon, church bulletin, on a church website or in an editorial in a church publication.17 In addition, churches may not indirectly support or oppose any candidates by characterizing candidates with anti-family or similar labels, using plus (+) and minus (–) signs, or other indications of candidates’ agreement (or lack thereof) with the church’s positions on particular issues.18
A church also may not establish a PAC nor may it provide or solicit financial support to or for any candidate, political party, or PAC.19 [*PG908]This includes loans,20 taking collections during worship services or at other church functions, and in-kind support, such as free or selective use of volunteers, paid staff, facilities, equipment, office supplies, mailing lists,21 or use of church letterhead.
Churches may not distribute, or authorize distribution of, campaign literature or biased voter education materials during worship services, whether through member mailings or by other means. Also prohibited is the placement of political signs or placards on church [*PG909]property, including church-owned parsonages or rectories.22 Since churches lack the ability to control access to adjacent public property, such as public streets and sidewalks surrounding church property, third-party distribution of partisan materials on public property generally is not attributed to the church. Although some court opinions relating to the distribution of leaflets in shopping malls and parking lots suggest a contrary conclusion, generally church parking lots are considered private property, since they are easily distinguishable, in terms of both use and access, from community shopping centers, malls, and similar public venues.23 Accordingly, churches may not authorize the distribution of biased or partisan campaign materials in their parking lots.
Churches and church-operated schools frequently permit local election authorities to use their auditorium and gymnasium facilities as polling places on Election Day. Such activity is a manifestation of civic duty, is nonpartisan, and does not violate the section 501(c)(3) political campaign activity prohibition. To the extent political leafleting is permitted outside polling places under local election rules, it is not attributable to the church. In addition, from time to time churches may be asked to make their facilities available for partisan political activities, such as party conventions or caucuses and candidate rallies. This occurs particularly in areas of the country where alternative large-capacity venues are scarce. Such use of church facilities is not per se prohibited. However, to insure that any partisan activity is not attributed to the church, the following precautions should be followed: (1) the church facility must not be provided free or at a reduced charge; (2) if the facility ordinarily is made available only to church-related users, it should not be made available to candidates or parties; (3) if the facility ordinarily is made available to outside users, the facility may be made available to candidates/parties on the same basis; (4) the facility should be available for all candidates/parties, with no preferences for any particular candidate/party; and (5) the church should not advertise, promote, or provide other services in connection with any political event taking place in its facility.
[*PG910] Not all political involvement by churches is prohibited under the Code. During election campaigns, churches may educate candidates about the issues and attempt to change their positions on those issues, and may educate voters about the issues and candidates’ positions on the issues.24 This may be accomplished through a variety of means, including sponsorship of candidate forums and distribution of voter education materials on incumbents’ voting records and the results of candidate polls or questionnaires. These voter education activities, if unbiased in content, structure, format, and context, do not violate the political activity prohibition.25
For example, the IRS has concluded that a section 501(c)(3) organization that published and distributed, during an election campaign, the voting records of all members of Congress on a wide range of subjects did not violate the political activity prohibition. The voting records were distributed annually (not merely during election years), contained no editorial opinions, and contained no indication of approval or disapproval of incumbents’ votes.26 The IRS has suggested criteria for evaluating whether distribution of incumbents’ voting records serves as an appropriate voter education activity, including: (1) whether incumbents are identified as candidates; (2) whether incumbents’ positions are compared to the positions of other candidates; (3) whether incumbents’ positions are compared to the church’s positions; (4) the timing, extent, and manner of distribution; and (5) the breadth or narrowness of the issues presented in the voting record.27
On the other hand, the IRS has concluded that the distribution during an election campaign of a biased voting record—one that indicated whether legislators voted in accordance with the sponsoring organization’s position—avoids violating the political campaign activity prohibition only in very limited circumstances: (1) the voting record does not identify candidates for re-election; (2) its distribution is not timed to coincide with any election, but rather is one of a series of regularly distributed voting records; (3) the distribution is not targeted to areas where elections are occurring; and (4) the voting rec[*PG911]ord is not broadly disseminated to the electorate, but only to a limited group, such as organization members or subscribers to its publication.28 Perhaps the most controversial IRS voter education ruling concluded that broad distribution of voting records or other voter education materials that do not cover a wide variety of issues violates the political activity prohibition, even in the absence of overt bias.29
Distribution by churches of voter guides prepared by unrelated organizations was a particularly contentious issue during the last two Presidential election cycles, one that presents a number of potential difficulties. Because the church did not prepare them, it is difficult, if not impossible, for the church to evaluate whether the questionnaire or instrument used to compile information about the candidates was free from bias, whether there was improper contact between the preparing organization and any candidate, and whether the presentation accurately reflected candidates’ positions on the issues. In addition, the organization preparing the voter guide frequently is not a section 501(c)(3) organization, and is not subject to the political activity prohibition. Thus, while distribution of these voter guides may pose no risk to the preparing organization, it may jeopardize the tax-exempt status of the distributing church. The problem is exacerbated when the outside voter guide is accompanied by a self-serving legal opinion assuring churches that the guide is “perfectly legal.”
Churches must exercise care when they prepare their own voter guides based on candidate questionnaires. They must follow IRS criteria for determining whether publication of candidate questionnaire responses violates the political activity prohibition: (1) whether the questionnaire is sent to all candidates; (2) whether all responses are published; (3) whether the questions indicate bias toward the organization’s preferred answer; (4) whether the responses are compared to the organization’s positions on the issues; (5) whether the responses are published as received, without editing by the organization; and (6) whether a wide range of issues is covered.30 The IRS has con[*PG912]cluded that an organization that published the positions of all candidates in a particular race on a wide variety of issues selected solely on the basis of their importance to the electorate as a whole did not violate the political activity prohibition, where neither the questionnaire nor the voter guide evidenced bias or preference in content or structure.31 Conversely, publication of responses to a candidate questionnaire that evidenced bias on certain issues did violate the political activity prohibition.32 When only one candidate responds, distribution of his responses is problematic. The IRS has offered no guidance on this issue, but the Federal Election Committee (“FEC”) voter guide rules require participation of at least two candidates.33
Both IRS and FEC rules permit churches to sponsor voter registration and get-out-the-vote drives, provided that no bias for or against any candidate, political party, or voting position is evidenced.34 Voter registration or get-out-the vote efforts should not be: (1) conducted in cooperation with any political campaign; (2) targeted according to the identity of the candidate; (3) based upon a candidate’s or party’s agreement or disagreement with the sponsoring church’s positions; or (4) targeted toward members of a particular party. Targeting voter registration drives at historically disadvantaged groups, whether based on economic status, race, gender or language spoken, however, is generally deemed unobjectionable.35 Churches may also sponsor unbiased public forums, debates, and lectures in which candidates explain their views to the public. Sponsoring churches may not insert their views on the issues being discussed, comment on candidates’ responses, or in any other way indicate bias for or against a particular candidate, party or position.36 The IRS has identified the following factors as important to a favorable determination on candidate fo[*PG913]rums: (1) all legally qualified candidates are invited to participate;37 (2) questions are prepared and presented by an independent nonpartisan panel; (3) topics discussed cover a broad range of issues of interest to the public; (4) each candidate has an equal opportunity to present his or her views on the issues discussed; and (5) the moderator does not comment on questions or otherwise imply approval or disapproval of any candidate.38
The IRS also has indicated that whether a church may invite a candidate to speak at a sponsored event depends upon all the facts and circumstances surrounding the invitation, and whether the candidate is invited in his capacity as a candidate or in his individual capacity. If the individual is invited as a candidate, the criteria for public forums, debates and the like apply. The IRS has further indicated that the nature of the event to which a candidate has been invited will be considered in determining whether the candidate has been provided requisite equal access. For example, if one candidate is invited to address the full congregation from the pulpit during a regular worship service, and the opposing candidate is invited to speak at a small prayer breakfast attended by only a handful of people, the church would likely be found not to have provided equal access. The IRS has suggested that a similar conclusion would be reached if a church were to invite two opposing candidates “with the knowledge and expecta[*PG914]tion that one would not accept the invitation because of well-known opposing viewpoints.”39
If a candidate is invited to speak in his capacity as a public figure or expert, it is not necessary to provide equal access to other candidates.40 The following precautions, however, should be observed to avoid violating the political campaign activity prohibition: (1) the candidate must speak only in his capacity as expert or public figure; (2) no mention should be made of his candidacy; (3) no campaign activity should occur in connection with the candidate’s appearance; and (4) all publicity regarding the candidate’s attendance should identify the expert or public-figure capacity in which he is appearing and should not mention his candidacy. The IRS has also indicated that if the primary purpose of an invitation is to showcase an individual’s candidacy, the organization may be found to violate the political campaign activity prohibition, even in the absence of campaign activity.
It cannot be over-emphasized that the political activity prohibition applies to churches as tax-exempt organizations. The prohibition, however, does not purport to curtail the political activities of church members or church leaders acting in their individual capacities. Nevertheless, care must be taken to avoid confusion as to whether individuals, particularly church leaders, are acting in their organizational or individual capacities. The 1991 IRS-approved press release, which announced its settlement with Jimmy Swaggart Ministries regarding political activity conducted during the 1986 presidential campaign, provided clarification on this attribution issue.41 Generally, if an endorsement (or statement of opposition) takes place during an official church function, or is included in the church’s official publication, the endorsement will be attributed to the [*PG915]church.42 In addition, church members, employees, or leaders, may “not in any way utilize the [church’s] financial resources, facilities or personnel” in the course of engaging in individual political activity, and must “clearly and unambiguously indicate that the actions taken or statements made are . . . not [those] of the [church].”43 Church leaders acting in their individual capacities are permitted to use their official titles to identify themselves, “so long as they make it clear that they are acting in their individual capacity, that they are not acting on behalf of the [church], and that their association with the [church] is given for identification purposes only.”44
The FEC has concluded that directors of an exempt organization may, in their individual capacities, establish an independent PAC, that is, one unconnected with the organization.45 The IRS has identified the following factors that suggest a PAC is not truly independent: (1) similarity between the name of the PAC and the exempt organization; (2) excessive overlap of directors; and (3) sharing of facilities between the exempt organization and the PAC.46
Because of the paucity of legislative history, attribution of rationales to the political activity prohibition has been largely an exercise in projection. The prohibition has thus evolved, at least as far as church activity is concerned, into something of a constitutional-philosophy Rorschach test. This is no more evident than in the organized efforts of “watchdog” groups like Americans United for the Separation of Church and State to report alleged church violations of the political activity prohibition.47 Supported by “wall of separation” rhetoric, such efforts pander to public misperception that it is the First Amendment that prohibits church political activity.48
Although the political activity prohibition may coincide with the strict separationist view, it is not constitutionally mandated. To the contrary, the right to participate in the political process is a fundamental liberty protected by the First Amendment. This right extends to churches no less than to secular institutions and private citizens.49 Pluralistic society depends on a “profound national commitment to the principle that debate on public issues . . . be uninhibited, robust, and wide-open,” and on debate that embraces “discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”50
If, in fact, church political activity were constitutionally prohibited, one would expect a political activity prohibition applied solely to churches. (Such an application would, of course, fail to pass constitu[*PG917]tional muster on the grounds that it evidenced hostility toward religion.) Whatever can be discerned about LBJ’s motivation for introducing the political activity prohibition, there has never been an intimation that silencing churches was intended or even considered.51 To the contrary, the political activity prohibition is inclusive of all section 501(c)(3) organizations. Just as Establishment Clause challenges to church tax exemptions have failed because churches had not been singled out for exemption but were granted exemption among a wide array of nonreligious groups, so the political activity prohibition is defended against Free Exercise Clause challenges on the same grounds—its neutral applicability to all section 501(c)(3) organizations.52
Another rationale for the political activity prohibition is that government must not subsidize partisan political activity. The prohibition “stem[s] from Congressional policy that the United States Treasury should be neutral in political affairs and that substantial activities directed to attempts to influence legislation or affect a political campaign should not be subsidized.”53 This rationale is premised on an understanding of tax exemption as a “subsidy.” However, there is no evidence that a subsidy theory of tax exemption was commonly accepted in 1954. Indeed, in a 1970 church property tax exemption case, Walz v. Commissioner, the Supreme Court concluded that “[t]ax exemptions and general subsidies . . . are qualitatively different.”54 In tax exemption, the government does not transfer its funds to churches, but merely “abstains from demanding that the church sup[*PG918]port the state.”55 Dean M. Kelley, a noted First Amendment scholar, has identified additional distinctions between subsidy and tax exemption.56 First, there is no subsidy amount predetermined by government. Rather, the value of tax exemption depends on the level of contributions to and expenditures by the exempt organization. Second, there is an element of compulsion involved in a subsidy, through the appropriation and taxation process, that is absent in tax exemption. Third, there is no periodic review by government to approve, renew, or maintain tax exemption, as is the case with subsidy. Finally, tax exemption does not convert an exempt organization to an agent of “state action,” whereas government subsidy may. “No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees ‘on the public payroll.’”57
Within a dozen years, however, this conceptual distinction was abandoned. The Supreme Court concluded in Regan v. Taxation with Representation that both tax exemptions and tax deductions were subsidies, and as such could be conditioned upon certain behaviors, here, refraining from substantial lobbying.58 In Bob Jones University v. United States, the Supreme Court held that as subsidy, exemption could even be conditioned on adoption of policies contrary to an organization’s religious beliefs.59 In Texas Monthly v. Bullock, an Establishment Clause challenge to a sales tax exemption solely for religious publications, the Supreme Court reaffirmed the exemption-as-subsidy concept, and clarified its holding in Walz, stating that the breadth of property tax exemption at issue had been an essential element in its conclusion that the exemption for churches did not violate the Establishment Clause.60
[*PG919] A third rationale supporting the ban asserts that political activity is incompatible with section 501(c)(3) exempt purposes.61 Neither political activity nor lobbying activity is inherently charitable or religious. Such activities nonetheless may be the means to accomplish exempt purposes. There is no logical reason to distinguish political activity, which is prohibited entirely, from lobbying activity, which is merely limited, and litigation activity, which is deemed an appropriate means of achieving exempt purposes.62
The First Amendment provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”63 Traditional Free Exercise analysis had maintained that facially neutral laws or regulations may violate the First Amendment if they unduly burden the free exercise of religion.64 The critical issue was “whether government ha[d] placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifie[d] the burden.”65
This traditional compelling-state-interest standard for evaluating Free Exercise cases was largely dismantled in Employment Division v. Smith, in which the Supreme Court held that the Free Exercise Clause did not relieve an individual of the obligation to comply with a neutral, generally applicable criminal statute against the use of peyote [*PG920]that only incidentally burdened religious exercise.66 In the Court’s view, only if prohibiting the exercise of religion were the object of the statute would the First Amendment be offended.67 Smith essentially eliminated the requirement that government justify burdens on religious exercise by compelling interests. The Religious Freedom Restoration Act (“RFRA”) was enacted in 1993 to restore the least-restrictive-means/compelling-state-interest standard that existed prior to Smith.68
Against this background, the political activity prohibition unquestionably burdens free exercise of religion, which includes the right to preach, teach, and proselytize, by requiring churches to choose between engaging in essential religious activities and the benefits of tax-exemption.69 This burden is increased by the prohibition’s broad scope as interpreted by the IRS, and the lack of clear standards for determining the boundaries of prohibited activity. Although an outright ban on religious speech would violate the Free Exercise Clause, the political activity prohibition does not operate as such a ban.70 It does not claim to “deprive [the organization] of its constitutionally guaranteed right of free speech. The taxpayer may engage in all such activities without restraint, subject, however, to withholding of the exemption, or, in the alternative, the taxpayer may refrain from such activities and obtain the privilege of exemption.”71
Churches find the reality of their choice—between the burdens of taxation and protected religious exercise—to be fundamentally repugnant. Their dilemma, however, engenders little judicial sympathy. In recent cases, judicial reaction to church arguments essentially has been that churches “protest too much,” that the burdens on free exercise imposed by taxation of religion have been overstated. For example, in Jimmy Swaggart Ministries v. Board of Equalization, the Supreme Court unanimously upheld the constitutionality of a neutrally-applied sales and use tax on mail order sales of religious publica[*PG921]tions.72 Echoing its earlier decision in Hernandez v. Commissioner, a tax-deductibility case, the Court determined that taxation, which merely decreases the amount of money available for religious activities, does not impose a constitutionally significant burden on religious exercise.73 Only if a flat tax were to operate as a prior restraint on the exercise of religious belief would the Free Exercise Clause require tax exemption.74 Evaluation of the burdens resulting from revocation of section 501(c)(3) exemption evoked a similar reaction: “Because of the unique treatment churches receive under the Internal Revenue Code, the impact of the revocation is likely to be more symbolic than substantial.”75
No matter how the burden is calculated, however, it must be weighed against the state’s interest in imposing it. Despite the fact that prevention-of-subsidy played no role in enactment of the political activity prohibition, exemption-as-subsidy is solidly ensconced in judicial precedent, with scant likelihood it will be dislodged. Thus, within this framework, the government successfully asserts a compelling state interest in not subsidizing political activity. In addition, maintenance of a sound tax system was enshrined in the compelling state interest pantheon in United States v. Lee, an unsuccessful Free Exercise challenge to the Social Security tax brought by an Amish employer.76 Assertion of these state interests virtually guarantees failure of Free Exercise (or RFRA) challenges to the political activity prohibition.
Although earlier free-exercise and free-speech challenges to the political activity prohibition had been unsuccessful, none had dealt directly with the prohibition’s application to churches qua churches. Any illusion that churches would prevail in an encounter between the protections afforded by the Free Exercise Clause and the tax code were dispelled, however, in Branch Ministries v. Rossotti.77 Branch Ministries operated the Church at Pierce Creek in Vestal, New York. Shortly before the 1992 Presidential election, the Church placed full-page ads [*PG922]in USA Today and the Washington Times, exhorting Christian readers not to vote for Bill Clinton, and requesting donations to defray the cost of the ads. The IRS revoked the Church’s exemption on the grounds that it violated the political activity prohibition. The Church filed suit, asserting that revocation of its tax-exempt status violated statutory provisions, both the Free Exercise and Free Speech Clauses of the First Amendment, and RFRA. In addition, the church charged that the IRS had engaged in selective prosecution.78 In a unique argument, characterized by the court as “more creative than persuasive,” the Church also argued that the prohibition did not apply to a church, since the statute refers only to a “religious organization.”79 The court ruled against the Church on all counts, concluding that the IRS’s revocation of the Church’s exempt status neither violated the Constitution nor exceeded its statutory authority.80
Further legal challenges offer dim prospects of success, except as they might erode the prohibition’s edges to limit IRS interpretations of its meaning and scope, as these currently preclude far more than outright endorsements or statements of opposition.81 To the extent the prohibition infringes on the ability of churches to engage in issue education or regulates the issue content of homilies, sermons and other communications with church members, it stands on shakier [*PG923]ground.82 While the prohibition itself may be constitutional, every IRS interpretation is not.
It is naive to assume that church political activity will cease with Branch Ministries v. Rossotti. Churches have played a pivotal role in every important political struggle since (and including) national independence: the abolition of slavery, gambling, child labor, prostitution, temperance, the death penalty, the war in Vietnam, abortion, and civil rights.83 They will continue to do so because they must. America’s Catholic bishops have stated that “leaders of the Church have the right and duty to share the Church’s teaching and to educate Catholics on the moral dimensions of public life, so that they may form their consciences in light of their faith.”84
In their involvement in public life, churches offer unique contributions. They speak with prophetic witness, address moral dimensions of civic life, and maintain a voice set in opposition to political interests and secular cultural influences. This is what faith demands and society deserves. “The exclusion of the moral factor from the policy debate is purchased at a high price not only for our values but also in terms of our interests. . . . To ignore the moral dimensions of public policy is to forsake our constitutional heritage.”85 Through the relig[*PG924]ious liberty protections engraved in the First Amendment, the Founders intended a society that would honor the tensions of religious pluralism, not eliminate them. The “wall” of separation between church and state is merely metaphor.86 “Religion cannot . . . be confined by a legal fiction.”87
Yet this is exactly the sort of confinement fostered by the political activity prohibition. Churches are pressured to vacate the public sphere entirely or to alter their message in conformity with interpretations of the tax law. To do otherwise risks drawing the twin penalties of loss of tax-exempt status and deductible contributions. The clash between church and state on the field of tax exemption is unfortunate and unworkable. The IRS is ill-equipped for front-line duty in an area fraught with constitutional implications. Relying, as it must, on media reports, and complaints filed by groups determined to eliminate church participation from public life in the name of separation of church and state, or interest groups with contrary policy views, the IRS invites charges of selective enforcement.88 Interest group politics played a significant role in the 1980 lawsuit filed by abortion clinic operators and certain clergy challenging the tax-exempt status of the United States Catholic Conference for allegedly engaging in prohibited political activity as part of its efforts to educate the public concerning its views on abortion.89 Despite the conclusion by the Joint [*PG925]Committee on Taxation, after a three-year investigation, that there was no credible evidence of political bias in IRS’ grant of tax exemption or selection of tax-exempt organizations for audit, the perception of an uneven playing field persists.90
Church political involvement comes at a considerable price in terms of integrity and independence. In addressing the moral dimensions of policy issues, churches are fulfilling their unique prophetic role. In endorsing a particular candidate, party, or political platform, however, they jeopardize that distinctive prophetic voice. A church engaged in partisan politics becomes indistinguishable from myriad interest groups competing in the political arena. The impact of such loss is incalculable, because to the extent churches forfeit their distinctiveness, they forfeit as well their claim to special constitutional protection. Professor Carter argues that “religions . . . will almost always lose their best, most spiritual selves when they choose to be involved in the partisan, electoral side of American politics.”91 Catholic bishops have expressly disavowed such involvement, stating that “[a]s bishops, we do not seek the formation of a religious voting bloc, nor do we wish to instruct persons on how they should vote by endorsing or opposing candidates.”92
To the extent that churches venture into the realm of partisan electoral politics, they also jeopardize their institutional autonomy, an essential component of religious liberty.93 Partisan politics pulls toward power. Power corrupts. To obtain and maintain power requires compromise. A compromised church no longer “speaks truth to power.” A politicized church has lost its independence.94 Much has [*PG926]been written of the alignment of conservative Christian churches with the Republican Party and of African-American congregations with Democrats, from the standpoint of gains to the respective political parties.95 Little has been written of what churches have lost in the process.
A document from the Second Vatican Council expresses the Catholic understanding: “The Church, by reason of her role and competence, is not identified in any way with the political community nor bound to any political system. She is at once a sign and a safeguard of the transcendent character of the human person.”96 The primary purpose of any church is religious. As it pursues its religious mission, the church is guided by its own transcendent vision of how society should be structured. As a God-given vision, it admits of no compromise. Yet compromise is the sine qua non of politics. For this reason, “politics is a very dangerous place for institutions concerned with spiritual matters that transcend ordinary human striving.”97 In choosing involvement in electoral politics, the church risks compromise, co-option, and collusion. A religious message without integrity is no message at all.98
After almost fifty years, it is tempting to assume that the political activity prohibition has always been part of the law. It has not. Steeped in separationist rhetoric, it is tempting to assume that the political activity prohibition is constitutionally mandated. It is not. Imbued with free exercise fervor, it is tempting to insist that rights to political expression always be fully exercised. For churches, they should not.
It is ironic that the political activity prohibition, perceived in many church circles as an unjustifiable and offensively intrusive burden on free exercise of religion, might actually serve the interests of religious freedom and pluralism precisely because it provides an ob[*PG927]stacle to church participation in partisan electoral politics. Threat of loss of tax-exempt status is not an absolute bar to partisan electoral politics. Yet it presents serious enough consequences to require churches to pause and weigh carefully what is to be gained and what is to be lost by a decision to endorse or oppose candidates, to insist that one party has the corner on God’s agenda, to instruct their faithful that a vote for one candidate is pleasing to God, a vote for the other sinful. Whether such partisan involvement improves society is debatable. That it would harm churches is not.
Absent the political activity prohibition, churches would be free to endorse candidates, to support political parties and their agendas and to tell members how they should vote.99 Yet, there is little indication that religious congregations want to be told how to vote by their churches or religious leaders. A Pew Research Center study indicates that members generally reject such a role by their churches, as a majority disapproved clergy discussing politics from the pulpit.100 The Center for Applied Research in the Apostolate has reported an even stronger negative reaction among Catholics. Only 13 percent of those polled wanted priests to urge support or opposition for specific candidates.101
The fate of H.R. 2910, a 1996 bill that would have amended section 501(c)(3) to permit churches and certain religious organizations to engage in limited political expenditures, suggests that churches may understand this message.102 The bill failed to garner significant [*PG928]support among church denominations and was not enacted. The primary deficiency of this seemingly well-intentioned legislative effort was its failure to consider that churches might not perceive the ability to endorse political candidates as a beneficial outcome. In their 1995 Statement on Political Responsibility, Catholic bishops recognized the risks of following the political path, when they asserted that telling people how to vote “would be in our view, pastorally inappropriate, theologically unsound, and politically unwise.”103 Would churches instructing people how to vote be any less pastorally inappropriate, theologically unsound, or politically unwise if it were not prohibited by the tax laws? I think not.
This is not, however, a brief for the status quo. Even if one accepts the premise that church involvement in partisan electoral politics is not a good thing, there is nonetheless much that is wrong with section 501(c)(3).104 IRS interpretations of the political activity prohibition are unacceptably vague and extend far beyond the range of reasonableness, particularly as applied to voter education. Because the political activity prohibition impinges on the free exercise rights of churches, it is incumbent upon the IRS to interpret the provision narrowly, clearly, and impartially. The prohibition should be limited to explicit endorsements of or opposition to political candidates and other clear and unambiguous support, financial or otherwise. Discussion of issues should never constitute prohibited political activity. The obligation of churches to address the moral implications of policy issues is not suspended during political campaigns, even if discussion of issues invariably involves candidates aligned on one side or another. Voter education materials should not constitute prohibited political activity unless they contain explicit statements of support for or opposition to a candidate, rate candidates as acceptable or unacceptable, or contain specific voting instructions.
The current situation is untenable. Faced with the extraordinary scope of the prohibition as interpreted by the IRS, and perceived non-[*PG929]enforcement of egregious violations, such as broadly publicized visits of high-profile candidates to church pulpits and collection baskets passed to benefit candidates, churches tend toward one of two extremes: they either ignore the prohibition and endorse candidates because of misguided confidence in First Amendment immunity or IRS inaction or they avoid legitimate involvement with important policy issues during campaign periods, out of unwarranted fear of IRS reprisals. Neither response is beneficial for church or society.