Churches and political endorsements

Before your church gets involved in politics, you'll want to read this article.

Todd R. McFarland, JD, is an associate general counsel for the General Conference of Seventh-day Adventists, Silver Spring, Maryland, United States.

It starts out innocently enough. A pastor is sitting in his office when a parishioner phones him. It turns out that he knows the campaign manager who works on behalf of a woman campaigning for a county board seat. This next weekend the politician will be visiting various groups before the election on the following Tuesday. Could she possibly come by the church and say a couple of words? No talk about politics; just a story about her religious upbringing, how she has fond memories of going to church, and the importance of faith in today’s society.

The pastor knows the candidate by reputation as a good person, although not necessarily his choice for the county board, but he honestly hasn’t given that particular race for office much thought. He thinks to himself, If she does win, knowing her could be useful. The pastor well remembers the fight he had at a prior church, trying to get a permit for a new parking lot. Having someone who knows his church can’t hurt if something like that happens here.

So the pastor invites her to come. At the appointed time the candidate stands up and talks for only two or three minutes. She tells a story about an aunt who used to go to the church and gave her a Bible that she carries to this day, and then she waves it from the pulpit for extra effect. Except for the introduction of the candidate— containing the mention that the speaker was running for county board—no one would know she was running for anything. No one even said, “Remember to vote next Tuesday.”

The next Monday the pastor is in his office when he receives an e-mail from a parishioner. The candidate’s visit was reported in the local paper because it so happens that a reporter was following the candidate that day and wrote about the visit to the church. She interviewed one of his deacons, the one who knew the candidate. When asked why the candidate was invited, he said, “She was the common sense candidate.”

Four weeks later, after the candidate who visited his church lost the election, the pastor sees an envelope with the United States’ tax agency, the Internal Revenue Service (IRS), logo in the upper left-hand corner.1 Opening it, the pastor immediately becomes confused and concerned because the document contains a lot of language about candidates, endorsement, tax-exempt status, and investigation. The IRS also wants documents, including recordings of the service, the bulletin, and any newsletters sent out in the last year. Being concerned, the pastor calls one of his church members, an attorney who functions as a corporate lawyer, but may know something about tax law. The lawyer says he is familiar with what the IRS has asked about. He informs the pastor that under the Internal Revenue Code, for a church to maintain its tax-exempt status, it cannot endorse any candidates for office. Someone from the IRS probably saw the article in the paper, had some questions and now plans to investigate. His parishioner does not practice in this area but informs the pastor that in the worst-case scenario the church could lose its tax-exempt status.

The pastor may not be a lawyer, but he knows the importance of that exemption. If his church loses its tax-exempt status, it will have to pay taxes on all of its revenue, it will have to start paying property taxes, and most importantly, donations to the church will no longer be tax-deductible. Losing that exemption cannot be considered an option—and even the risk of that loss, no matter how remote, has to be taken seriously. By this point the pastor realizes that this matter has implications for more than his congregation, and he contacts the conference office.

The pastor and a conference representative call a tax lawyer (who was referred by his parishioner) with an office located two hours away in the closest major metropolitan city. It turns out there are not many tax lawyers in the church’s mid-size community who specialize in tax issues for exempt organizations. The lawyer informs the pastor and the conference representative that this matter should be considered as serious as he thought. He tries to be reassuring, telling them that the IRS is unlikely to revoke the church’s exemption over such a minor infraction; but the matter has to be taken seriously. The lawyer can help the church—he has handled other cases like this. The pastor also finds out that the costs would be very significant.

Could this really happen?

This nightmare scenario can become all too real for churches nowadays. Since 1954, in the United States, the Internal Revenue Code has banned churches from endorsing candidates, but it has enforced this only sporadically until recently. However, since the last election cycle the IRS has streamlined how it handles these investigations.

No one besides the IRS really knows how often investigations are launched, and unless an investigation gets to a certain point, it is not publicly disclosed. However, reports both in the news media and from the IRS indicate that these investigations are increasing.

This increase has occurred for several reasons, including the increase in churches’ involvements in the political process. Another contributing factor includes interest groups monitoring the political activity of organizations. Such organizations as Americans United for the Separation of Church and State and the American Civil Liberties Union—which in the best of circumstances are less than friendly to organized religion—are particularly keen on finding and reporting violations. Church leaders should be aware that entities exist that would love nothing more than to see the IRS launch an investigation of a church.

One high profile investigation occurred as the result of a sermon given by the Rev. George Regas of the All Saints Episcopal Church in Pasadena, California, United States, the Sunday before the 2004 general election. The sermon was titled, “If Jesus Debated President Bush and Senator Kerry.” The sermon focused on the Iraq war and what Jesus would say to Bush and Kerry, both of whom supported the war. In the first 30 seconds of the sermon, Regas stated he did not intend to tell people how to vote, though in fairness his sermon was tougher on Bush than Kerry.

The IRS launched an investigation, asking 11 different questions, including what the content of the sermon was and the names and addresses of all of its board members. All Saints continues to resist the IRS investigation, but in doing so hired one of the biggest guns in exempt organizations tax law. All Saints has not disclosed what the legal fees total to date for the case.

What was disturbing to many about the All Saints case was that the pastor did not endorse either candidate, and in fact, criticized both candidates. And he launched his criticisms regarding an issue central to that church—the issue of peace and war. If a church does not have the freedom to speak out against war, what can it speak out on? The IRS rules, at face value, do allow churches to speak out on issues that are important to churches. Theoretically, at least in the United States, churches may speak out on issues—but not on candidates. Thus, a church remains free to oppose or support the Iraq war all it wants. The church cannot say, vote for person X because the church endorses this candidate, or this person seems to be the right candidate on a given issue. But what happens, such as in a presidential election, when you have two candidates diametrically opposed on a single issue of central importance to a church? This was the dilemma facing many Catholic churches in 2004 on the abortion issue. The archbishop of the St. Louis diocese, Raymond Burke, went so far as to say it would be a sin for a Catholic to support Kerry because of his stance on abortion (which is ironic given Kerry’s status as a Catholic himself). Archbishop Burke eventually backtracked to say it would only be a sin if a Catholic voted for Kerry because of his stance on abortion but could support the candidate if it were for other reasons.

So what are churches allowed to do and prohibited from doing? The easiest part of this question to answer is, What is prohibited? A church cannot “participate or intervene” on behalf of or against any candidate for office whether for federal, state, or local office. Endorsing a candidate, making contributions to a political campaign, placing yard signs on church property, or bumper stickers on church vehicles are all prohibited.

But what about inviting a candidate to speak at church—a practice common in many churches? The easiest and best advice would be to simply not do it during election season. However, if a church does care to venture into these treacherous waters, there are rules to be followed. The church has to be careful to provide equal access. If one candidate receives an invitation, then the other must be invited to a similar program. Letting one candidate address the church at the eleven o’clock service and inviting their opponent to talk before the Wednesday night prayer meeting attended by about 15 faithful souls cannot be considered equal access. Furthermore, it is important to invite both and not simply say that the other candidate never contacted you. They may not even know that the other side appeared at your church.

The rules become more relaxed when dealing with issues rather than candidates. Lobbying or speaking out on ballot initiatives or legislation is only limited and not prohibited like it is for candidates. The rules on the amount of lobbying allowed are rather complicated; but in short, it has to be a small part of the church’s activities and needs to be tied to some mission of the church.

These rules are complicated and the above examples only raise some of the issues. If a church wants to become involved in politics it needs to familiarize itself with the rules of the local taxing organization. In the United States that is, of course, the IRS. Consulting a lawyer that specializes in tax law for exempt organizations is always a good idea. For U.S. tax law, the United States Conference of Catholic Bishops has a good resource available at http://www.usccb.org/ogc/. Another good resource is the IRS’s own Web site, which can be found at http://www.irs.gov/charities/churches/ and click on the resource titled “Churches, Charities, and Educational Organizations—Political Campaign Intervention.”

What the pastor needs to know

Knowing and following the rules will keep a pastor and church out of trouble, but what about the larger principles involved? At first blush, these rules can seem intrusive to a local congregation and pastor. After all, there is nothing more sacrosanct to pastors than the topics presented from their pulpits. Feeling called by God to minister to a flock, it goes against a lot of training and instinct for a pastor to be told by some bureaucrat in Washington, D.C., what can be preached during the service. Elections do matter and can have an impact on parishioners and society. If a church is dedicated to a particular cause, say poverty and the plight of the poor, why can’t a pastor stand up and endorse the candidate who has made this issue a central theme of their campaign for the United States presidency?2

There are several reasons for this restriction, both from the government and the church’s perspective. Allowing exempt organizations such as churches to endorse candidates and otherwise “electioneer” (lawyers’ fancy term for trying to get someone elected) threatens to overwhelm the election process. With hundreds of millions of dollars being raised for national campaigns, the temptation to raise some of that money in a tax-deductible fashion and outside the normal limits on campaign contributions would be unbelievable. If pastors believe that the IRS rule intrudes now, imagine if it had to try and distinguish between “legitimate” churches and nonprofits and those set up as a front for a campaign. Unless all campaign contributions are made as tax-deductible, the IRS would be forced into the role of supercopover every church and nonprofi t organization during elections.

Protecting the election process is not the only rationale for this rule. For a church taking a stance in an election, it works out great if its “side” wins, but in the hypothetical situation mentioned earlier, what would happen if the church went to the winning county board member for help with getting a permit for its new parking lot—having previously supported his opponent? The risk of supporting one party or candidate over another is that when “your people” are out of power, then so are you. Secular business entities understand this and that is why they rarely, if ever, publicly endorse one candidate over another but rather support individuals in both parties. By having this rule, churches are insulated from politicians who would otherwise seek the support or an endorsement of a church.

Another way the electioneering prohibition benefits churches is that it provides some protection from the inherently messy political process. It is one thing for a church to take a stance on an issue that deals closely with its core mission, such as poverty. However, it is quite a different thing to say which fallible human being would be best suited to further that goal. Even on issues with a united congregation, the endorsement of a particular candidate will almost certainly ruffle the feathers of some congregants and can easily come back to haunt pastors who pick a candidate that they later regret. If a pastor’s job includes spiritually leading and nurturing their congregation, taking sides in a partisan political debate will rarely further that goal.

Conclusion

There is no question that restrictions on enforcing or supporting candidates in the United States and other countries limit what can be said from the pulpit about political issues and candidates. However, many pastors recognize this as a reasonable restriction in exchange for the significant benefit tax-exempt status confers. These pastors also recognize that restriction can also be a blessing, protecting them from becoming embroiled in a partisan political process that rarely leaves the participants looking better.

1 This article analyzes this issue in the context of U.S. law. However, other countries, such as Canada, have similar restrictions. Pastors should seek specific guidance about their country’s rules. Pastors have many responsibilities and it would do well to seek counsel from conference personnel on such issues.
2 Pastors who may think that at least in the United States the First Amendment will provide freedom of speech should be aware that while the constitutionality of the law has not been ruled on by the Supreme Court, few legal scholars believe that the Supreme Court would strike the law down in its entirety.

 

 

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Todd R. McFarland, JD, is an associate general counsel for the General Conference of Seventh-day Adventists, Silver Spring, Maryland, United States.

November 2007

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