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Yesterday was Pulpit Freedom Sunday, a project of the Alliance Defense Fund that encourages religious leaders to speak about politics to their congregations. The event is intended as a protest against the 1954  Johnson Amendment to the federal tax code. The Johnson Amendment states that entities who are exempt from federal income tax cannot:

"Participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of – or in opposition to – any candidate for public office."

For more than 50 years the IRS has had the right to review the contents of religious leaders' sermons to see whether they are adhering to this law. During that time it has sent out letters threatening to rescind the tax-exempt status of hundreds of churches. The law is, as the Alliance Defense Fund and plenty of religious leaders have pointed out, blatantly unconstitutional.

And so in 2008, pastors began to fight back. In that year 33 pastors from 22 different states participated in Pulpit Freedom Sunday. They made specific recommendations about voting for candidates based on their adherence to Scriptural readings and then brought their sermons to the attention of the IRS, goading the agency into investigating so they could prompt a constitutional challenge. In 2009, more than 80 pastors participated in Pulpit Freedom Sunday, and in 2010, nearly 100 pastors participated. According to the initiative's website, "As of this date, none of the participating churches have had their tax exemption revoked – nor have any received penalties from the IRS for what was said during their sermons."

Like many of our laws restricting speech surrounding political campaigns, the Johnson amendment seems pretty nonsensical to the average observer. We all know that religious leaders of every political stripe talk about politics from the pulpit. From Obama's suggested High Holidays messages for the nation's rabbis to the Catholic Church's threats to withhold communion from politicians who vote to liberalize abortion laws to the Mormon Church's support of Proposition 8 in California. You'd have to be blind to think that it is possible for our religious institutions to remain on the political sidelines. (It's not clear why that would be desirable either. Religious movements have played an important role in our greatest moments of political progress from abolition to civil rights.)

Leaving aside the constitutional questions, what is the point of drawing the line at letting religious leaders endorse candidates? As Terry Mattingly rightly points out at the GetReligion blog today, the New York Times entirely missed the fact that this is where the line is drawn, suggesting that this is somehow a debate about whether pastors can talk about politics at all.  The policy only leads to a lot of winking and nodding. Okay, folks, we're for gay marriage. We can't tell you who to vote for but you can go home and find out who is for gay marriage and vote that way. Got it?

This approach, in addition to being silly, means that religious leaders must reduce all of politics to issues and not comment on the men and women who are participating in it. The question of a politician's character cannot be on the table. But in principle, our clergy should be uniquely qualified to talk about the vices and virtues of particular politicians not just the way they vote on particular hot-button questions.

In the same way that laws restricting spending on campaigns have not exactly taken the factor of money out of politics, so laws about restricting religious leaders from endorsing candidates have not made churches any less of a factor in politics. I hope that the pastors who preached politics yesterday have proved their point.

4 thoughts on “Pulpit Freedom Sunday protests tax code”

  1. Albert says:

    Er: “Taxing everyone’s political speech to limit the power of the wealthy is more dangerous to a free society than taxing only the wealthy.” should end in “than taxing only the wealthy for their wealth.” i.e. the political speech of the rich shouldn’t be taxed either, but their wealth should be.

  2. Albert says:

    I’m uncertain of the consequences of changing current policy, but I don’t think Mr. Miller’s arguments hold much water.

    First, it’s unclear what significance your distinction between lobbying and political speech has. Sure, the IRS makes the distinction, but why should lobbying be treated differently than the rest of political speech in the first place? No reason is given. At any rate, the distinction is immaterial because frequently there is only one candidate who supports an important issue, e.g. the end to a war, the prohibition of abortion, same-sex marriage, etc. Moreover, even if there are multiple pro-life candidates, for example, non-lobbying political speech would also include statements like “You should vote for the most pro-life candidate, evidenced by for example supporting laws like X, Y, Z [where XYZ is a law only one pro-life candidate supports].” It’s simply impossible to maintain the distinction and certainly cost-prohibitive to enforce whatever line is drawn.

    The second point can be addressed by noting there is no reason for the federal government to tax political speech at all. Everybody should have “tax deductible” contributions toward political speech. If you fear the disproportionate political influence of wealthy, raise property, corporate and capital gains taxes. Taxing everyone’s political speech to limit the power of the wealthy is more dangerous to a free society than taxing only the wealthy.

    Yes, it’s true that the SCOTUS opined that taxing political speech is not unconstitutional (implied in its opinion that the federal government does not have to give a tax exemption to lobbying groups). But just because something is constitutional doesn’t mean it’s a good idea. Moreover, I think the original post author meant it was unconstitutional because churches are religious institutions. It’s not merely political speech, but religious speech concerning religious beliefs and practices. Many have tried to separate religion from some secular realm, but all have failed (see here for example).

    501(c)(3) status is voluntary for churches, but churches have default tax-exempt status (including tax deductibility for donations) even without 501(c)(3) status by virtue of being churches. Their legal status, whether 501(c)(3) or not, is materially the same. Your statement “if a church didn’t adopt it then all of its political speech would be free from IRS scrutiny” is simply false. Churches even apart from 501(c)(3) status are forbidden from endorsing political candidates.

    Suffice it to say that the current popular understanding of the First Amendment freedom of religion clause is contradictory and incoherent because it was never meant to support any federal laws affecting churches whatsoever, but rather to leave it to the states and simply not privilege a particular church.

    Lastly, my view as indicated above is that political speech shouldn’t be taxed for any group for the aforementioned reasons since better alternatives exist. But apart from that, the “exempting from taxation = subsidy” is specious in the context of the tax’s impropriety with respect to churches in the first place. It comes down to the fact that all religions have something to say–as an intrinsic part of the religion–about politics, human rights, justice, etc. The only way to respect both freedom of religion and the freedom of political speech with integrity is to eliminate taxation on both (though taxes on the latter has been ruled constitutional, if not prudent).

  3. Aaron Miller says:

    You leave a lot out that undermines your argument.

    First, much of what you classify as political speech is what the IRS considers lobbying. You argue that they’re equivalent, but I disagree. Endorsing a particular candidate is functionally and practically different than stating a position on a specific political (i.e. legislative) issue, because multiple candidates, even competing candidates, may support that position. If my pastor/priest/rabbi/imam tells me that I should vote for a candidate that supports a specific position, it usually leaves me more than just one candidate to choose from. You say the result is just “a lot of winking and nodding”, but if you remove this limitation, you get the consequences in my second point.

    My second point is that if you allow (c)(3)s to participate in political campaigns, then people can make tax deductible contributions directed toward political speech. The result is the federal government paying a tax subsidy to political speech. When you additionally consider that wealthy people get more of a tax subsidy for their donations because of marginal rates, it also means that we’d subsidize the political speech of wealthy people more than anyone else. Charities, including churches, would be altered or newly formed merely to create opportunities for tax-subsidized political campaigns.

    You say the law is unconstitutional, but I disagree. The Supreme Court said that there’s no constitutional requirement for the government to subsidize speech when it upheld the substantial lobbying restriction for 501(c)(3)s. (Regan v. TWR: http://www.oyez.org/cases/1980-1989/1982/1982_81_2338/) The political campaign restriction is fundamentally the same as the lobbying restriction when it comes to the first amendment because they both involve protected speech. You call this restriction unconstitutional, but a 9-0 Supreme Court decision disagrees with you.

    Third, 501(c)(3) status is voluntary. No church is required to adopt this tax status, and if a church didn’t adopt it then all of its political speech would be free from IRS scrutiny. Churches that choose 501(c)(3) status also choose the speech restriction.

    Finally, the law applies to all 501(c)(3) organizations, not just to churches. If you carve out an exception just for churches from this restriction, it would exclude nonreligious charities from this benefit, contravening the establishment clause of the first amendment.

    I’m a highly religious person who pays a regular tithe and I think the law is not only constitutional, but also wise because of the implications granting income tax deductions for endorsing particular candidates.

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