The IRS’s restrictions on the clergy’s speech

American politics and religious beliefs have been intertwined since the Continental Congress adopted the notion that all men “are endowed by their Creator with certain unalienable Rights.”  (Ironically some of the signers of the Declaration of Independence owned slaves.)  A few years back, some Christians displayed buttons and bumper stickers reading: “WWJD” — signifying that, before taking action, they should ask: What would Jesus do?  Inevitably, some voters will consider their religious beliefs before casting their ballots.  For some, the question will be WWJVF – Who would Jesus vote for?  Oddly, the U.S. government forbids many churches and their clergy from answering this hypothetical (and grammatically incorrect) question.  Although this article refers to “churches” and uses Christianity merely as an example, the ban applies to such speech by the clergy in all places of worship.

Under the Internal Revenue Code, a church is not allowed to “intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”  A church risks its tax-exempt status if its clergyperson speaks favorably or negatively about a political candidate even if those statements are based solely upon religious beliefs.  The IRS even gives examples of what a church can and cannot do.  For instance: “[A] member of the congregation of Church P, is running for a seat on the town council. Shortly before the election, Church P posts the following message on its web site, ‘Lend your support to B, your fellow parishioner, in Tuesday’s election for town council.’ Church P has intervened in a political campaign on behalf of B.” Yes, asking congregants to vote for someone they already know personally may result in a church being stripped of its tax-exempt status.  A minister may recommend a candidate only if the minister does not do so “at an official church function, in an official church publication or otherwise use the church’s assets, and [does] not state that he [is] speaking as a representative of [the] Church.”  Thus, even if asked directly by a congregant during a private conversation at a church event, a member of the clergy must refuse to advise which candidate is preferable.

In Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), a federal court upheld a church being stripped of its tax-exempt status because the church placed newspaper ads stating that a candidate’s positions “violated Biblical precepts.”  The IRS argued the ads constituted a prohibited “intervention” in a political campaign.  That prohibition, however, extends beyond statements to the public at-large.  A congregation is a collection of likeminded individuals who choose to gather to hear about their common beliefs.  The ban extends to statements made solely to this group of voluntary listeners, who may share a common ethnic, socio-economic, or cultural background.  Even if a candidate has expressed racist, xenophobic, or religiously intolerant views, a clergyperson whose congregants could be negatively impacted by the election of that candidate is prohibited from advising the congregation of the potential harm.  Consequently, congregants are forbidden from obtaining information on candidates from sources the congregants trust with the most important and intimate issues in their lives.

For those who disagree with the law, what are the next steps?  Answer: 

A. Violate the ban (at your own risk).  Certainly, there are clergypersons who preach from the pulpit about the candidates for whom their congregants should or should not vote.  Chances are that the IRS will not come knocking on their doors to revoke their churches’ tax-exempt statuses (unless someone complains). 

B. Lobby Congress to change the law.  This is an issue on which liberals and conservatives should be able to collaborate.  Those who view religious institutions as favoring only socially conservative candidates and agendas forget that the Civil Rights Movement was spurred on by African-American ministers seeking social change.  It also would seem that all religious institutions should be able to find common ground because the ban affects all of them. 

C. File lawsuits.  Under the First Amendment to the Constitution, Congress cannot make any law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”  The phrase “unless the religious organization wants to be tax-exempt” does not appear in the First Amendment, yet arguably, the Code does each of these things which the Constitution outlaws.  There may also be a claim under the Religious Freedom Restoration Act.  Although the ban has survived past court challenges, time will tell whether this ban ultimately survives.

Ashton is a partner in DLA Piper’s Baltimore office.