DATELINE: June 23, 2008, Chicago
We had heard about the planned challenge by certain churches to the prohibition in Section 501(c)(3) on campaign interventions, but we found Russell Goldman's coverage on the ABC News Web site to be detailed and especially interesting. Pastors Challenge Law, Endorse Candidates From Pulpit, June 20, 2008. Goldman's article focuses on Gus Booth, the pastor of the Warroad Community Church in Minnesota. Pastor Booth told his congregation,
If you are a Christian, you cannot support a candidate like Barack Obama or Hillary Clinton for president.
That strikes us as a...
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violation of Section 501(c)(3)'s prohibition. It also struck Pastor Booth as a violation. Rather than waiting for some watchdog group to the blow the whistle to the IRS, Pastor Booth wrote the IRS to let them know what he had said. In case Pastor Booth's letter got lost in the mail, the IRS is still likely to know about what we view as a violation. According to Pay Doyle of the Minneapolis Star-Tribune, Americans United for Separation of Church and State advised the IRS of the alleged violation. Warroad Preacher Vows to Put Politics in his Pulpit, June 11, 2008.
Pastor Booth is no dummy. He knows what he is doing. In his view, the prohibition in Section 501(c)(3) is a constitutional restraint on freedom of speech and religion. Who knows, he might even convince a court to go along with him, but we don't see that happening.
Pastor Booth forgets that there are two sides to federal tax-exemption. He is focused on the provisions that might be viewed as the price of tax-exemption. Congress wisely decided that it doesn't want to subsidize political speech. Hence the prohibition applies not only to churches, but also to all other Section 501(c)(3) organizations. In exchange for abiding by the rules, Pastor Booth's church can receive tax-deductible charitable contributions and earn income exempt from taxes. Nobody is stopping Pastor Booth from speaking out in his personal capacity. Like all Americans he can do that, but not a subsidized basis.
The United States Supreme Court has made that clear in the case of the limitations on lobbying imposed on Section 501(c)(3) organizations. Writing for the majority in Regan v. Taxation With Representation, 461 U.S. 540 (1983), Justice Rehnquist said,
TWR is certainly correct when it states that we have held that the government may not deny a benefit to a person because he exercises a constitutional right. See Perry v. Sindermann, 408 U. S. 593, 408 U. S. 597 (1972). But TWR is just as certainly incorrect when it claims that this case fits the Speiser-Perry model. The Code does not deny TWR the right to receive deductible contributions to support its nonlobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise a constitutional right.
This aspect of these cases is controlled by Cammarano v. United States, 358 U. S. 498 (1959), in which we upheld a Treasury Regulation that denied business expense deductions for lobbying activities. We held that Congress is not required by the First Amendment to subsidize lobbying. Id. at 358 U. S. 513. In these cases, as in Cammarano, Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for TWR's lobbying. We again reject the "notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State." Id. at 358 U. S. 515 (Douglas, J., concurring). [Footnote 7]
Pastor Booth is not the only one who is willing to ignore the holding in Taxation With Representation. According to the ABC News article, the Alliance for Defense Fund is asking religious leaders to evaluate candidates in light of scripture on September 28, 2008. Erik Stanley, legal counsel to the Alliance, told ABC News,
Our hope is that the IRS will initiate investigations and we can bring this into the federal courts.
Obviously what Pastor Booth and Stanley would like to see happen is for Congress to repeal the prohibition against campaign interventions. Congress is certainly more likely to undertake such a reconsideration if a bunch of churches are being challenged by what many view as the evil IRS. Hence the call for what might be viewed as a form of civil disobedience.
To some extent, the protest is predicated on a misunderstanding of the limitations imposed on church leaders. Suzanne Sataline of the Wall Street Journal has also penned an article on the planned protest. Pastors May Defy IRS Gag Rule: Legal Group Urges Ministers to Preach About Candidates, May 9, 2008. The Rev. Steve Riggle of the Grace Community Church in Houston told Sataline,
The government should not be telling the church what it should or should not be saying...As a pastor, a private citizen, I can speak for myself. The IRS cannot quench my voice.
First of all, the IRS isn't silencing anybody's voice. It is Congress that passed the law, which it then requires the IRS to administer. Second, as a private citizen, Rev. Riggle has the right to express his political preferences. He just can't do it in his official capacity or in the church.
As we said, be careful what you pray for. Intervention means more than just opening your mouth. It also means opening your wallet. We think it would be most unfortunate if charitable dollars were diverted to political campaigns. And we don't think most charities want to deal with political candidates. Imagine the local food bank that finds itself being asked for contributions for the Republican presidential candidate. If it gives to the Republican, will long-time Democratic contributors continue giving money to the food bank? Booth, Stanley, and Riggle fall into the trap of believing congregations are monolithic in their political views. Booth and Riggle face alienating members of his own congregation. Whoever said a religious leader knows more about tax or energy policy than members of the congregation? Therein lies the problem. If religious leaders are no better than anyone else, then why should their speech be subsidized when other people's speech is unsubsidized? This isn't a question of free speech. It is a question of equal protection.
For whatever reason, Congress has erected a useful wall between Section 501(c)(3) organizations and politicians. It is unlikely that the courts will tear it down on constitutional grounds. If charities are smart, they won't let politicians dismantle the wall.
But go ahead Pastor Booth, Rev. Riggle, and Mr. Stanley. Make the IRS's day. We hope they accept your challenge. Let the smackdown begin. In preparation, you might want to read Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000).
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