In election season, churches reminded of campaign do's and don'ts

With a new election cycle approaching, churches are reminded of what they can and cannot do under a decades-old congressional amendment that prohibits political campaigning in such institutions.

The Johnson amendment to the tax code was enacted in 1954 to prevent tax-exempt organizations under the Internal Revenue Service from participating in political campaign activity. It has drawn criticism from religious institutions and nonprofit organizations for restricting their constitutional right to free speech.

According to section 501(c)(3) of the IRS Code, charities, churches and other organizations that are not required to pay a federal income tax cannot "participate or intervene in any political campaign on behalf of or in opposition to any candidate for public office." They can, however, engage in nonpartisan activities such as administering voter education guides, conducting voter registration drives and holding nonpartisan educational forums.

The Alliance Defending Freedom, a nonprofit legal organization that advocates for the right of people to freely live out their faith, has launched a campaign called "Pulpit Freedom Sunday."

What the group calls a "strategic litigation plan" encourages religious leaders to preach on moral, social and governmental issues to their congregation. The way it works is that pastors agree to give a politically motivated sermon suggesting a specific candidate to vote for, and then send a record of their sermon to the IRS in the hopes of triggering the enforcement of the Johnson amendment.

At this point, the group would represent the church free of charge and seek to have the Johnson amendment declared unconstitutional.

The alliance's senior legal counsel, Erik Stanley, said the purpose of this initiative is to end the federal government's control over the content of a pastor's sermon by taking the issue to court.

"It basically is trying to provoke a civil rights test case," Stanley said in a phone interview with Catholic News Service. "There's never been the opportunity to have a court decide whether [the Johnson amendment] is constitutional, and so that's been the reason for this strategy."

Stanley said the initiative is necessary because he said the IRS has been using intimidation to keep churches from fighting back against the law.

"Most churches will self-censor and kind of chill their own speech on the topic of candidates or an election in order to not run afoul and draw an IRS audit," he said. "And so the IRS can rule this issue by fear and intimidation as opposed to ... actual measured legal enforcement."

Stanley also said he believes the Johnson amendment presents a clear violation of the First Amendment to the Constitution.

"The government cannot condition tax exemption on the surrender of constitutional rights," he said.

Lloyd Mayer, associate dean for academic affairs and professor of law at the University of Notre Dame Law School, said although the law "clearly burdens free speech," it is "almost certainly constitutional."

"This restriction is tied to a benefit of tax exemption," he said. "It's generally agreed among scholars and practitioners that ... if you want to be tax exempt and you want to get charitable contributions, Congress can say, 'In exchange for that, you can't do this kind of political activity.' "

However, Mayer noted that potential weaknesses of the law are that its definition is "unconstitutionally vague" and it has not been explicitly tested in the courts.

"If you don't know, clearly, what is prohibited and what isn't, that will cause you to sort of back away from the line if you're cautious," he said. "And so some people have raised the possibility that the definition the IRS uses is unconstitutional ... because it's too vague."

With regard to "the wall of separation between church and state," a phrase made famous by Thomas Jefferson in the early 19th century, Stanley said he believes it applies solely to the idea that the state should not exercise control over the church.

"The church should be free, independent, autonomous. That was the way that Thomas Jefferson was using the phrase," he said. "He was trying to reassure ... that the federal government was not going to be intruding in the realm of the church."

Mayer agreed that the church is "an opposite and separate sphere from the state."

"Interference between the church to the state or the state to the church needs to respect the fact that they are really separate sovereigns in their area of responsibility," Mayer said. "Churches speaking to their own congregants ... should not be subject to these sorts of restrictions and in fact I think it does raise constitutional problems."

The seventh annual Pulpit Freedom Sunday will take place Oct. 5.