Americans United for Separation of Church and State (AU) has sent out a letter purporting to explain the law regarding "electioneering by nonprofit organizations." Those who receive it need to know it's full of inaccuracies and misstatements and is plainly intended to intimidate churches and pastors and to sideline their voices during this election season.
First, the AU letter states that churches "may not intervene directly or indirectly in partisan campaigns," and that "any activity designed to influence the outcome of a partisan election can be construed as intervention." These statements are purposefully vague. After all, who can define with any certainty what it means to "indirectly" intervene in a political campaign?
To be fair, AU is parroting some of the IRS' own language on this issue as the IRS itself has prohibited churches from "directly or indirectly" participating in a political campaign. Yet vague statements like this go further in illustrating the problem churches have in complying with the IRS code than with what a pastor should and shouldn't say when exercising his freedom of speech.
AU is taking advantage of this vagueness in the Internal Revenue Code to intimidate churches and pastors. It is telling churches that if you cross the line, then you may face punishment or consequences from the government, but won't tell you with any certainty where that line is. In so doing, the AU is wielding the law as a club to intimidate churches into silence.
After warning churches that violations of the law can result in revocation of tax exempt status or "significant fines on the house of worship or its leaders," AU then tries to provide substance for these claims by giving examples of when the IRS has enforced the tax code against churches in the past. But these examples are not anywhere near what AU makes them to be.
Each of the examples AU includes in its letter are addressed below:
• The Church at Pierce Creek – AU states that the IRS "revoked the tax-exempt status of a Binghamton, N.Y. church for buying a full page ad in USA Today opposing a 1992 presidential candidate." And then it states that the federal courts upheld the revocation. These statements are patently false.
The Church at Pierce Creek did buy a full page ad before the 1992 election urging Christians not to vote for a particular presidential candidate. But the IRS never revoked the church's exempt status: it revoked the church's tax exempt letter of determination. The distinction is crucial. Churches do not need a tax exempt letter to be considered exempt. The tax code grants an automatic exemption to churches. Many churches choose to get a tax exempt letter from the IRS that serves as proof that the church is exempt from federal income taxes but such a letter is not required and churches may hold themselves out as exempt without having such a letter. The Church at Pierce Creek had obtained a letter from the IRS and the IRS revoked the letter after the Church ran the USA Today ad. The appeals court upheld the revocation of the Church's letter but also held that because the Church did not need a letter to be considered exempt, the revocation of the letter had little to no effect on the exempt status of the church.
This is where AU is dead wrong. The courts never revoked the exempt status of the Church. It only revoked the exemption letter that the Church didn't need in the first place. And the Church never paid any penalties or taxes as a result of the USA Today ad.
This case is the only reported case of any church ever losing its tax exempt letter as a result of political intervention. There is no reported case of any church ever losing its tax exempt status though. And this is true even though the restriction against churches has been law since 1954! AU's statements about the Church at Pierce Creek are flat out wrong and majorly overblown.
• Pat Robertson and Jerry Falwell – AU states that "Pat Robertson's Christian Broadcasting Network and Jerry Falwell's Old Time Gospel Hour have been subject to audits and retroactive tax payments for violating the 'no electioneering' rule." These statements are disingenuous because neither of these organizations are churches. Both of these organizations did make financial payments in support of candidates during the mid 1980's and both were audited by the IRS. They did have to pay financial penalties and each had their exempt status revoked for two years as a result of the financial payments. The important points to remember are that the revocation involved financial payments in support of candidates and neither of the organizations were churches.
The misrepresentations used by AU show that its motivation is to intimidate churches and pastors.
But it provides an opportunity to highlight the fact that churches should be aware that some provisions of the tax code are unconstitutional. Specifically, any IRS attempt to censor a pastor's sermon from the pulpit is unconstitutional. That's why Alliance Defending Freedom started Pulpit Freedom Sunday, to protect a pastor's right to speak freely from the pulpit without fearing government censorship or control. After all, it's the job of the pastor and not the IRS to decide what is said from the pulpit and no pastor should ever fear IRS censorship or punishment when he stands in the pulpit to preach.
For more information on Pulpit Freedom Sunday, please visit www.pulpitfreedom.org.