Free Your Pulpit

October 3, 2011 | 12 comments
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pulpitOn Sunday, as we luxuriated in General Conference (however we followed it), we missed an annual tradition: Pulpit Freedom Sunday.[fn1]

A quick background on Pulpit Freedom Sunday: on July 2, 1954, Lyndon Johnson proposed that Section 501(c)(3) (the Internal Revenue Code section that exempts, among other things, churches, universities, and the NCAA from tax) be amended to prevent exempt organizations from campaigning on behalf of or against candidates for office. [fn2] There’s no legislative history, and, in fact, no record of the voice vote on the amendment. But it passed. Note, though, that the prohibition wasn’t particularly aimed at churches; in fact, most people seem to think Sen. Johnson was worried that (non-religious) nonprofits were trying to unseat him.

Since 2008, the Alliance Defense Fund  has sponsored Pulpit Freedom Sunday. The basic idea is that pastors flout the prohibition, deliberately supporting or opposing a candidate for office in their sermons. Which they record. And send to the I.R.S. The idea seems to be to “bait” the I.R.S. into attempting to revoke at least one church’s tax exemption, then challenge the revocation to the Supreme Court, in an effort to have the prohibition overturned as unconstitutional.

Will the I.R.S. take the bait? Probably not. In 2006, the I.R.S. released a study it had done of its 2004 Political Activities Compliance Initiative. Basically, it looked at 82 cases in which it the non-profit allegedly violated the prohibition.[fn3] It determined that 18 of the public charities had not, in fact, violated the prohibition. Of the 64 violators, 53 received a (maybe nasty) letter, 3 were fined, and 4 (none churches) lost their exemption. This in spite of the fact that the penalty for violation is loss of exemption, with a fine in certain circumstances.

And if the I.R.S. did revoke an exemption? The church might be out of luck. There’s only one court case that I know of addressing the I.R.S.’s authority to revoke a church’s exemption. In Branch Ministries v. Rossotti, the Court of Appeals for the D.C. Circuit held that the revocation of a church’s exemption as a result of violating the prohibition met the constitutional muster. Among other things, the church did not contend that not participating in politics would violate its beliefs; moreover, the worst thing that would happen would be the church would have less money to work with. This, the court held, was not “constitutionally significant.”

Would the Supreme Court follow the same analysis as the D.C. Circuit? I don’t know; that precedent is out there, though.

On a personal level, I’m conflicted. On the one hand, I like the manner of protest. The participants are not trying to be sneaky—they are willing to risk the loss of exemption in order to stand up for their (political) beliefs. On the other hand, I like Church as a more-or-less politics-free zone. And I generally agree with the court’s reasoning in Branch Ministries.

Either way, though, another year, another Pulpit Freedom Sunday. I hope you enjoyed yours.

[fn1] Actually, we also missed the Blessing of the Animals, in honor of St. Francis of Assis. But frankly, that’s a much cooler tradition than Pulpit Freedom Sunday (shhh!).

[fn2] The history actually goes beyond that: as early as 1919, the Treasury Department was trying to determine how involved exempt charities could be in politics.

[fn3] 57 percent of the charities were not churches, while 43 percent were.

12 Responses to Free Your Pulpit

  1. James Olsen on October 4, 2011 at 12:30 am

    “I like Church as a more-or-less politics-free zone.”

    More or less indeed: I’ve definitely seen the more and the less. More is better – but only because the less (politics-free) wards I’ve been in have often descend into various states of uber-obnoxiousness, based mostly on the convinctions of the various activists that our doctrine rigidly forces on us all a specific political position. If we were all much better at intelligently discussing politics and could comfortably listen to someone spout diabolical views, I’d be happy with the less wards.

    Didn’t even know about Pulpit Freedom Sunday. Glad you mentioned it.

    And the Feast of St. Francis of Assisi happens to be my daughters birthday. She even got a blessing from a Jesuit for the fact! So we celebrate it. And yes, I think it’s a much cooler tradition.

  2. Kent Larsen on October 4, 2011 at 6:03 am

    Sam, when you discussed this briefly in the comments to one of your recent tax posts, you suggested that the protest was misdirected to the IRS instead of congress (because the IRS can’t change the law). This post now gives a different rationale. Isn’t trying for a Supreme Court case a bit more risky? The court could rule against the protest, but congress, if it acts at all, would probably give them something closer to what they want (since it would be different than the current situtation).

  3. Kent Larsen on October 4, 2011 at 6:13 am

    Also, I have some doubt about whether a change in the law would lead to any change in the official LDS position on politics in the meetinghouse. As far as I remember, from my (albeit limited) knowledge of the history of the Church’s relationship with political candidates, the Church stopped backing, even unofficially, political candidates long before this law went into effect. I know Lorenzo Snow unofficially backed Thomas Kearns for the U.S. Senate in 1902 in a move that was highly controversial among the GAs. And, IIRC, Reed Smoot’s candidacy eventually led to the requirement that GAs get permission to run for office.

    If Church leaders remember the history at all, it seems like they would avoid, regardless of the tax exemption, the minefield that such endorsements necessarily run through.

  4. Jax on October 4, 2011 at 8:20 am

    Kent,

    It was my question to Sam about Pulpit Freedom Sunday that prompted his response in his previous post. I was asking him what changes might occur if the law did change. Thanks for filling me in that before the 1957 ban the church had stopped endorsing candidates on its own. Can anyone else confirm Kent’s sketchy memory? Was it just the GA’s who stopped endorsing people or did they send letters telling SP and Bishops not to do it either?

  5. Sam Brunson on October 4, 2011 at 8:45 am

    James, happy birthday to your daughter! I think we made the Blessing of the Animals at St. John the Divine’s once, and it was really cool.

    Kent, I think the Supreme Court is riskier—the ADF and its conservative Christian friends undoubtedly have a lobbying network that would at least give them access to the relevant Congresspeople. That said, Congress likes to let people think the IRS writes the tax law (and thus shift the blame from Congress); there is very little upside to Congress’s changing the law. Moreover, even if Congress were to remove the prohibition, a future Congress could add it back. If the Supreme Court were to declare the prohibition unconstitutional, Congress can’t add it back. (In addition, the ADF is really only concerned with how the prohibition affects churches, not how it affects the NCAA, universities, or tax-exempt hospitals. But because the legislation is written broadly, it may raise some difficult questions to just excise churches from its reach.)

  6. Sam Brunson on October 4, 2011 at 8:51 am

    Also, Kent and Jax, I suspect that even without the prohibition, the institutional Church won’t be endorsing or opposing candidates. I am curious, though, as to whether it would send out its political neutrality letter. On the one hand, it wouldn’t have face any official censure if a bishop or SP were to endorse a particular candidate. On the other hand, it could be bad for our public image or it could cause some sort of blowback from members.

    I suspect that the Church would continue to send the political neutrality letter, though, for two reasons. First, the Church has a lot of institutional inertia; it is better at adding than eliminating things. Second, the Church seems to want a fairly tightly correlated experience throughout the world, for better or worse. I don’t see its asking that we use approved artwork in the buildings and follow the manuals, but permit random leaders to endorse random candidates.

  7. Jax on October 4, 2011 at 8:54 am

    That’s just one more mark against correlation I guess…

  8. Eric Smith on October 5, 2011 at 6:07 pm

    First time commenting…
    I appreciate Sam’s comments and legal analysis and am likewise conflicted about the spirit of Pulpit Freedom Sunday (generally positive)and its intended consequences (perhaps not so positive). Another dimension to the legal argument, and I think it is the main point of ADF’s groundswell, is that s.501(c)(3)’s campaign-speech prohibition violates Pastors’ 1st Amendment rights: specifically, freedom of speech and free exercise of religion. This is why ADF instructed participating pastors to base political opinions on scriptures in the Bible. The counter to that argument, though, is the absence of any constitutional right to tax exemption for churches. And I think this would be a pretty strong defense for the government if the IRS every did take the bait. Pastors can say whatever they choose to say from the pulpit in relation to political issues and candidates, but they will say it potentially without exemption from federal taxes.

  9. Sam Brunson on October 5, 2011 at 6:47 pm

    Eric, welcome, and thanks for commenting! I think that you’re spot-on in looking at ADF’s motivation underlying Pulpit Freedom Sunday; I also suspect that the constitutional claims aren’t terribly strong, but I could be convinced otherwise. In fact, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts just came in the mail today, and I’m looking forward to the authors’ tax and constitutional arguments.

  10. Raymond Takashi Swenson on October 6, 2011 at 12:55 am

    The purpise of the Free Speech and Assembly clauses in the First Amendment are primarily to prevent government interference in the political speech that influences elections and the decisions of public servants. On what grounds does Congress have right to suppress the polutical speech of ANY citizen?

    There are restrictions in the Hatch Act that limit the political speech of Federal civilian employees. Military regulations and the Uniform Code of Military Justice make it punishable for a soldier to voice criticism of the President or engage in active politics. These restrictions are allegedly justified to prevent Federal employees from being pressured by their Presidentially appointed superiors to cintribute funds or time to political campaigns, and to maintain subirdination of the military to civilian control. Of course, these rationales do not prevent oyblic school teachers from devoting their summers to campaigning.

    But what is the danger to the republic if leaders if tax exempt organizations speak out on candidates and public policy? That they might actually influence an election? That pastors are presumptively stupuder than other people who talk about politics? The Supreme Court has held that corporations, whether for profit or not, have a First Amendment right to be involved in politics and elections. I am aware if no reason that would nit include churches as well.

    If the government has no right to suppress plitical speech outsude its own emp,oyees, attaching that unconstitutional suppression to a tax measure that punishes anyone who speaks about public pilicy, including the denial of free speech, does nit ameliorate its lack of legitimacy, but exacerbates ut. If government can attach denial of a constitutional right to a quidnpro quo of tax reduction, it could require a real poll tax be paid by anyone wanting to run for office, cintribute to a candidate, ir write a letter to their newspaper on polutical issues. The fact that government has establushed a nechanism to enforce its tyranny does not change the nature of the tyranny.

    The notion that this scheme is proper is premised on the assumption that all income presumptively belongs to the government and that letting you keep income that might otherwise be taxed is legally the same as a government sunsidy to you. Thus the rationale for the restriction is that non-profuts like churches are actually arms if the government and it is therefire improper for them to be pilutically involved, just like the Hatch Act suppression of Federal employee action. Even if tax exemption is totally discretionary with Congress, if it gives an exemption it is unconstitutional to use ANY power of government to violate Free Speech and Assembly.

    One would think the recent precedent woyld be enough basis to expect a win in the Supreme Court, but the Court’s rulings tend to be arbitrary, caoeicious, and lacking in consistency, especially when dealing with religious institutions. The more reliable approach us the polutical path through Congress and the White House. The Libertarians ought to be pushibg this issue.

  11. Rymond Takashi Swenson on October 6, 2011 at 1:08 am

    Thebreal basic reason for the Church to avoid politics is that it does not want to create political divisons among the members, just as it tries to avoud division based on income or ethnicity. It also knows that the Church being identidied institutionally with only one party means that the other party will see ut as a political rather than religious institurion and seek to hinder it. Extending pitical neutrality to all full time Church employees helps avoud division. Its intervention in immigration debates is meant to avoid alienation between Hispanic and orher members. Addutionally, the pulpit in a ward or stake does not belong to its bishop ir stake president. They have no right to make political statements on behalf of the Church. And the Prophet is going to focus only on issues he judges worth a briad church investment of time.

    Baptists vote with their feet all the time uf they don’t like what they hear over the pulpit. The LDS commitment to attend a geographic ward evinces a reciprocal duty that every ward not alienate him with polutics.

  12. Sam Brunson on October 6, 2011 at 8:47 am

    Hey RTS, if I understand you, you’re making three major points: (1) the prohibition on campaigning violates churches’ First Amendment rights; (2) tax expenditure analysis is bad, and (3) even absent the prohibition, the Mormon church wouldn’t generally become involved in politics.

    How I’d respond:

    (1) If you look at the case I linked to (Branch Ministries), the DC Circuit holds that the constitutionality question is more nuanced. It says that if, in order to receive a tax benefit, a church must violate its doctrinal obligations, that would be unconstitutional. But where the church has no doctrinal obligation to support a candidate, and further, where the only harm is that the church has less money than it otherwise would have, there is no violation. And that seems broadly consistent with the Supreme Court’s jurisprudence in this area.

    (2) Tax expenditure analysis is not premised on the idea that all money belongs to the government, as much as its opponents would like to paint it that way. Instead, it’s premised on the idea that a recipient of government subsidy is indifferent as to whether that subsidy is delivered as cash or as a reduction in its taxes (ignoring, of course, administrative costs). That is, if I’m an oil and gas company, I don’t care if I pay my taxes and, in a separate transaction, the government gives me $100, or if the government reduces my taxes by $100 and doesn’t give me any cash.

    I’m actually surprised that (some) conservatives are so opposed to tax expenditure analysis, because it promotes transparency. Back when tax expenditures were off-budget, a Congressperson could provide benefits to constituents through tax breaks that didn’t show up in the budget; because they were harder to see, they were easier to deliver. Now that they’re quantified and reported, it’s harder to hide the expenditures.

    (3) I totally agree. Even without the 501(c)(3) prohibition, I don’t see any reason why the Church would endorse or oppose individual candidates.

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