The Alliance Defending Freedom (formerly the Alliance Defense Fund, ADF) is gearing up for Pulpit Freedom Sunday scheduled for October 7.
In a video published on YouTube this week, the organization's senior legal counsel, Erik Stanley, says it only makes sense that churches and the IRS need to be brought into legal conflict over the tax code (see video below). Stanley alleges that they are unable to file a lawsuit against the 1954 Johnson Amendment that prohibits 501(c)(3) organizations, which includes charities and churches, from engaging in any political campaign activity. According to the IRS, "To the extent Congress has revisited the ban over the years, it has in fact strengthened the ban. The most recent change came in 1987 when Congress amended the language to clarify that the prohibition also applies to statements opposing candidates."
Stanley says that a church must be investigated and punished by the IRS for something said from the pulpit before any legal action can be taken to challenge the 1954 Amendment as violating First Amendment rights. He claims that the IRS "shields" the 1954 Amendment by auditing churches and then merely sending letters telling churches that they violated the amendment and not to do it again. According to Stanley, the amendment is vague and does not define a bright line between what speech is permitted and what is not permitted. This, he says, has created "a climate of intimidation, censorship and fear."
Stanley is critical of Americans United for Separation of Church and State (AU), accusing them of "…tak(ing) advantage of this atmosphere to further intimidate pastors and churches. They threaten churches and pastors, draft letters to the IRS about churches they think have crossed the line, and send out press releases claiming that pastors or churches have endangered their tax exempt status. Even though groups like this may be incorrect, the damage is done because public perception is furthered that pastors should just stay out of politics. Pastors, unsure of where the line is, self-censor, effectively chilling free speech from the pulpit. Then the IRS backs away from any court challenge, allowing this atmosphere of intimidation to persist and grow."
Hungry for a lawsuit, the organization encourages churches to sign up for the Pulpit Freedom event.
Last November, AU reported that the IRS might not be in a position to do anything about enforcing the 1954 Amendment because:
Despite efforts by AU and others to report rogue churches and pastors that violate the tax code, the IRS has yet to take any public action to discipline any of the churches that have participated in Pulpit Freedom Sunday since the initiative's inception in 2008. Part of the explanation for the inaction is a procedural glitch in the IRS's church tax-auditing process, which was exposed in early 2009 by a ruling in a case unrelated to Pulpit Freedom Sunday.
The IRS in 2008 attempted to initiate an audit of the Living Word Christian Center in Brooklyn Park, Minn., but the church challenged that audit on the grounds that an inappropriate Treasury Department official had authorized it.
A judge in the U.S. District Court for the District of Minnesota sided with the church, ruling that the IRS director of exempt organizations examinations, who had authorized this audit and others, was not a high enough ranking Treasury official. The exempt organizations examinations director, the court held, did not have the range of responsibility of a regional commissioner, the official who had been authorized to approve church audits before the IRS was reorganized in 1998.
That decision meant that the IRS could no longer audit churches until its procedures were revised. The IRS issued a draft of revised regulations in 2009, but has still not completed the project, according to Marcus Owens, who was director of the IRS division that oversees exempt organizations in the 1990s.
AU also notes that the 1954 Amendment has already withstood court scrutiny:
"Pulpit Freedom Sunday is a bit of a scam," [its president, Barry] Lynn said. "There is enormous pulpit freedom in this country."
Lynn went on to note that the Johnson Amendment has already withstood a legal challenge when the IRS revoked the tax exemption of a church that took out a newspaper ad denouncing then-presidential candidate Bill Clinton in 1992.
In 2000, the District of Columbia Circuit Court of Appeals in the case of Branch Ministries v. Rossotti "saw no violation of free speech, no violation of freedom of exercise, because tax exemption is not a right to anybody," Lynn said.
"It's a privilege," he added.
An informational letter issued by the IRS on April 18, 2008, echoes AU's statement that the 1954 Amendment has been challenged in court:
[...] under federal law tax-exempt charitable organizations are prohibited from endorsing any candidates, making donations to their campaigns, engaging in fund-raising, distributing statements, or becoming involved in any other activities that may be beneficial or detrimental to any candidate. Even activities that encourage people to vote for or against a particular candidate on the basis of nonpartisan criteria violate the political campaign prohibition of section 501(c)(3).
The federal courts have upheld this prohibition on political campaign activity, most recently in Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000). The courts have held that it is not unconstitutional for the tax law to impose conditions, such as the political campaign prohibition, upon exemption from federal income tax.
The prohibition on political campaign activity applies only to tax-exempt charitable organizations, not to the activities of individuals in their private capacity. The political campaign activity prohibition is not intended to restrict free expression on political matters by leaders of charitable organizations, including churches, speaking for themselves, as individuals. Nor are leaders prohibited from speaking about important issues of public policy. However, for their organizations to remain tax-exempt under section 501(c)(3), leaders cannot make partisan comments in official organization publications or at official organization functions, including official church publications and functions.
Readers might recall Oklahoma pastor Paul Blair's political endorsement in 2010, where he clearly was not intimidated, as the ADF suggests, and knew where the "bright line" was drawn. In his 2010 "Pulpit Freedom Sunday" sermon, he endorsed Oklahoma's Mary Fallon for governor and declared, ""We need another generation of God fearing, Bible thumping patriot pastors. We need a revival in America." Blair was one of the pastors named in a complaint by AU that year for violating the 1954 Amendment.