Let My Preachers Endorse: A Modest Church-State Proposal

This past Wednesday the Freedom from Religion Foundation filed a federal lawsuit against IRS Commissioner Douglas Shulman for allowing churches to endorse candidates while remaining tax exempt. According to the FFRF, this “constitutes preferential treatment to churches and religious organizations that is not provided to other tax-exempt organizations.” Regardless of the outcome, the church-state watchdog is quite right about one thing: churches have been electioneering, and they’ve been doing it for quite some time.

Church in the Valley urged its members to “VOTE FOR THE MORMON, NOT THE MUSLIM! THE CAPITALIST, NOT THE COMMUNIST!”; Ridgway Christian Center in Colorado instructed its to “Honor God! Love Your Country! VOTE REPUBLICAN!”; while church bulletins of St. Catherine of Siena in New York included a pro-Romney message from former U.S. ambassadors to the Vatican. The 1500 congregations supporting Pulpit Freedom Sunday, which included Black churches, endorsed an array of local, state, and federal candidates. And they’ll continue to do so.

“It’s their prerogative, it’s their opinion, it’s their church,” observed a resident of the Texas town where Church in the Valley is located. True. But the law requires that, in return for public subsidies—tax exemptions and tax-deductibility for donations—all congregations like all other charities agree to public regulation of their electoral (and lobbying) activities. While some congregations consider it a violation of their religious freedom, it’s a constitutional exchange, according to case law. Moreover, as the Tenth Circuit Court ruled in the 1972 Christian Echoes National Ministry, Inc. v. United States, which addressed lobbying by faith-based organizations, tax subsidies are “a privilege, a matter of [governmental] grace rather than right…”

As these churches refuse to quit electioneering, and since the IRS has failed to strip them of their tax-exempt privilege, the FFRF suit seems quite appropriate. But what if there’s another way to deal with this issue…a way for congregations to endorse candidates—but in a constitutional way? It turns out there is one: give congregations the option to change their tax status, from charitable 501(c)(3) to social welfare 501(c)(4) organization.

After all, Congress permits social welfare organizations to endorse candidates and keep their tax exemptions, if they can show electioneering isn’t their primary activity. As long as electioneering didn’t become the primary activity of congregations as social welfare organizations, their clergy could freely endorse candidates and keep the amazing grace of a government subsidy.

Before 1954 the political activities of congregations, save for lobbying, were unregulated. Despite tax-exempt status, tax-deductible contributions, and the freedom to electioneer, congregations didn’t become political machines. Since then, however, for reasons unrelated to congregation-based electioneering, Congress has circumscribed electoral engagement by all charities. It prohibits them from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” Oddly, it lets them support or oppose candidates for appointive office, including positions that may influence elections and their results (e.g., the Supreme Court).

Of course, congregations desiring more electoral action already may create social welfare organizations. But there’s no incentive for them to do it; individual donations to 501(c)(4)s and transfers of funds from congregations to them aren’t tax-deductible. That’s partly why groups like Alliance Defending Freedom want congregations to remain 501(c)(3)s, preserving tax-deductible contributions to subsidize congregational electioneering. Yet, if the free exercise of religion requires electioneering, as ADF and others claim, congregations should willingly render back tax-deductibility to the government.

Read on Religion Dispatches.