The Rev. James Garlow knows how you should vote.

Image: churchexecutive.com

More than 100 conservative pastors took to the pulpit for Pulpit Freedom Sunday last weekend, where they issued fire and brimstone exhortations sparked by politics. In a move designed to provoke the Internal Revenue Service into action, activist clergymen and women (if there are any women) organized by the hardcore conservative Alliance Defense Fund fully intended to skirt or cross the line between religious and political speech from the pulpit.

            But just where is the line?  According to IRS regulations, the line is no line in the sand, more serpentine calligraphy in quicksand.  In this prohibition, context is everything, and, I’ll warn you, it’s complicated.

            In general, according to the IRS, “section 501(c)(3) organizations must avoid any issue advocacy that functions as political campaign intervention.”  But when is that?  The IRS provides a set of guidelines in IRS Revenue Ruling 2007-14 purportedly designed to solve the riddle.  They are:

·      Whether the statement identifies one or more candidates for a given public office;

·      Whether the statement expresses approval or disapproval for one or more candidates’ positions and/or actions;

·      Whether the statement is delivered close in time to the election;

·      Whether the statement makes reference to voting or an election;

·      Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office;

·      Whether the communication is part of an ongoing series of communications by the organization on the same issue that are made independent of the timing of any election; and

·      Whether the timing of the communication and identification of the candidate are related to a non-electoral event such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office.

Simple yet?

Timing Is Everything

First, when the speech occurs plays a big part in determining whether the message is overtly political.  If no election is on the horizon, the usual presumption is that the speech is more likely to fall on the side of issues advocacy.  But if you count the primary season, as we must, campaign season is pretty much all the time.  Certainly the present would qualify.  Or would it? The IRS isn’t saying.  And that’s partly what pisses off religious activists like The Rev. James Garlow, senior pastor at Skyline Church in LaMesa, California.  He intends to unload from the pulpit this Sunday and send his taped remarks to the IRS.

It’s Not What you Say It’s Where You Stand

It turns out, where Rev. Garlow is standing when he makes his political remarks matters.   The IRS says in Situation 3 of the Revenue Ruling that a nonprofit official has a right to a private opinion, but if that official utters the opinion in the course of what the IRS calls “official functions,” such as standing at the pulpit, it’s pretty clear the speech could  be interpreted as political interference if the content so qualifies.  If the same pastor stands up at a candidate’s press conference and endorses him, not identifying himself as Pastor So-and-So, the identical message could be interpreted as private speech despite the public nature of the utterance.

            Political activists like Garlow want to interpret the whole shebang as a First Amendment issue, but it isn’t really. The reason they suffer the prohibition—introduced by a young Senator Lyndon Johnson in 1954, by the way—is that the tax benefits they enjoy allow their parishioners (say, David Koch) to make tax-deductible contributions to further the exempt purposes of the church.  But it wouldn’t be so fair to grant Mr. Koch a fat tax deduction so he could fight a candidate who wanted to fight discrimination against gays, say. Doesn’t that make sense?

            This whole candidate thing gets a little tricky.  What if a priest doesn’t name a candidate by name but rails against a policy closely associated with one candidate, exhorting the flock to vote en masse, in a two-candidate race at a time close to an election?  That, according to IRS Revenue Ruling 2007-14, Situation 16, would be prohibited speech as a situation in which an officer of an organization “referred to the upcoming election [italics mine] after stating a position on an issue that is a prominent issue in a campaign that distinguishes the candidates.”

            James Garlow, for one, seems to get this.  He said this week in a New York Times article by Sandy Huffaker, “I will, in effect, oppose several candidates and—de facto—endorse others.  So he is heading across that serpentine line—and he can’t get there fast enough for some experts. Marcus Owens, former head of the Exempt Organizations Division of the IRS is one of the nation’s foremost experts on tax law as it pertains to nonprofits.  I have heard him speak on a couple of occasions and his integrity and passion for the well being of the nonprofit sector was as refreshing as it was well-informed.  As an attorney in private practice representing a group of Ohio churches that oppose the political grandstanding of the fundamentalists, Owens seems to have concluded that the IRS is dragging its feet big-time when it comes to enforcement.

            Why?  Administrative fear of a political backlash is my guess.  My bet is Owens has amassed a portfolio of clear violations of the political speech prohibition and the IRS has a full set, too.  But going after evangelical churches doesn’t sit well with a certain, shall we say well-connected group of legislators who would be only too happy to pass the next IRS budget with religious enforcement X’ed out.  Regardless of where it’s standing, money talks, and money talks big in evangelical circles.

            The result is churches openly flouting the law while the rationale for tax exemption is eroded in the minds of general public.  That ideological hard-liners—who already have the hide-the-puppet mechanism of 501(c)4s to do their political bidding—feel emboldened to destroy the integrity of the charitable sector as well is, well, unconscionable.  The level of entitlement boggles a bit.  Those who do not feed the hungry, heal the sick, or educate the young have stretched charitable privileges under the tax code far beyond the silly-putty point.  But it is under the banner of education, such as “voter education,” that their propaganda is heard in the walled confines of propagandistic churches.  This while IRS regulations clearly state that no level of bias is permitted in 501(c)3 voter education initiatives.

            Politico-pastors like Garlow want you to believe that this is a murky area, but it doesn’t have to be.  The prohibition is well understood and enforced in countries like the U.K.  In the U.S. it is only murky because IRS regulations are mealy-mouthed and full of unnecessary contextual nuance. It’s a shell game with such peas as gay marriage and abortion, even immigration and gun rights, in play. 

            Some writers, including the New York Times’ Sandy Huffaker, who wrote that the prohibition against electioneering on the part of churches "may have been an unintended consequence," have implied that unintended consequences have unnecessarily muzzled the churches so that, were they in days of slavery they would be muzzled to speak out against it. Nothing could be further from the truth.  (Never mind the fact that in the days of slavery many churches didn’t bother.)  Pastors remain free to speak out against gay marriage.  They just can’t tell you in the next breath to vote for the guy who is against it—or for the guy who is for it.  The pastor can tell you how wrong gay marriage is on the day before the election, even if one of the candidates is strongly associated with a pro-marriage position; they just can’t tell you to vote, or how to vote.  And if they want to tell you who to vote for, they can go out as private citizens and form a PAC or a 501(c)4 and tell the world exactly who to vote for.  They just can’t offer a charitable tax deduction to their backers—and they can’t use the bully pulpit while they wear that hat.

            Not simple.  Not cut and dried.  But the most egregious examples of religious electioneering are certainly enforceable, and worthy of attention in an era of widespread, blatant abuse of the charitable exemption.