A Symposium for Attorneys and Clergy at Ave Maria School of Law by James Bopp, Jr., Attorney at Law
In July, 2002, the Internal Revenue Service released its revised and
updated "Tax Guide for Churches and Religious Organizations." The Tax Guide puts
its myriad rules, regulations, and interpretations of Section 501(c)(3) into an
easy and readable format. Although it may be a welcome clarification of the
position of the Internal Revenue Service in some circles, it should not be
viewed uncritically. In reality, it is a clarification of the IRS’s attack on
the First Amendment of the U.S. Constitution.
I am a practicing attorney with the law firm of Bopp, Coleson & Bostrom
in Terre Haute, Indiana, and Webster, Chamberlain & Bean, Washington, D.C. Since
1980, a significant portion of my law practice has involved the representation
of non-profit and religious organizations — including the National Right to Life
Committee and the Christian Coalition of America — regarding compliance with
Internal Revenue Code Section 501(c)(3), Section 501(c)(4), and Section 527. I
have represented non-profit organizations in both state and federal courts,
successfully challenging state laws that were an infringement on their
constitutional right of freedom of speech.
I am also the General Counsel for the James Madison Center for Free
Speech (a corporation recognized as tax exempt by the Internal Revenue Service
under 501(c)(3) of the Internal Revenue Code), which advocates and promotes free
speech and association rights in the election law context through litigation,
legislative analysis and testimony, comments on proposed rule-making by the
Federal Election Commission, and which publishes scholarly and popular articles.
Because of my developed expertise in federal constitutional law, I have
provided testimony on numerous occasions before federal and state legislative
committees on proposed election legislation and before the FEC on proposed
regulations. Since 1996, I have served as the Chairman of the Election Law
Subcommittee and the Free Speech & Election Law Practice Group of The Federalist
Society for Law & Public Policy Studies.
The problem addressed by these guidelines is illustrated when, on the
one hand, people of faith who speak about moral issues in public are
accused of attempting to force their religion upon others; and when, on the
other hand, they address moral issues in church, they are accused of
engaging in politics. The Jeffersonian "wall of separation" doctrine, which does
not appear in the U.S. Constitution, has inspired a rather bold attempt to
silence people of faith not only in the public square, but also in their
churches. This attitude is an unofficial but outspoken form of bias or
discrimination against people of faith.
A good example is the issue of abortion. When people of faith speak out
against abortion in the public arena, they are told not to force their religious
views upon others. When people of faith speak out against abortion in their
churches, they are told not to bring politics into the church. Opposition to
abortion is interpreted as support for pro-life political candidates and
opposition to pro-abortion candidates, even when the candidates’ names are
Sometimes churches are also threatened with loss of tax exempt status,
and sometimes they are investigated by the Internal Revenue Service in order to
determine whether revocation of their exempt status is justified. Thus, the
possible loss of tax exempt status is used by those hostile to people of faith,
to chill their right of free speech, and silence them in their own churches.
This bias against churches has been codified in Section 501(c)(3) of the
Internal Revenue Code by the prohibition against activities considered
"political intervention" broadly interpreted and enforced by the Internal
The solution is to reject the position of the IRS in regard to
Section 501(c)(3) and to affirm the First Amendment. As stated by the other
presenters, the purpose of the First Amendment was to protect the free
discussion of governmental affairs including the discussion of candidates for
political office. In legal parlance, discussion of governmental affairs is
called "issue advocacy." The United States Supreme Court has held that
protection of issue advocacy reflects our "profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and
the distinction between discussion of issues and candidates and advocacy of
election or defeat of candidates may often dissolve in practical application.
Candidates, especially incumbents, are often intimately tied to public issues
involving legislative proposals and governmental actions. Not only do candidates
campaign on the basis of their positions on various public issues, but campaigns
themselves generate issues of public interest. . . . In short, the supposedly
clear-cut distinction between discussion, laudation, general advocacy, and
solicitation puts the speaker in these circumstances wholly at the mercy of the
varied understanding of his hearers. . . .2
The Supreme Court in Buckley, in affirming absolute
constitutional protection for issue advocacy, recognized that issue advocacy
could influence elections.
Public discussion of public issues, which also are campaign issues, readily
and often unavoidably draws in candidates and their positions, their voting
records and other official conduct. Discussions of those issues, and as well
more positive efforts to influence public opinion on them, tend naturally and
inexorably to exert influence on voting at elections.3
Based on this recognition, the Court in Buckley affirmatively
endorsed influencing elections through issue advocacy:
As long as persons and groups eschew expenditures that in express terms
advocate the election or defeat of a clearly identified candidate, they are free
to spend as much as they want to promote the candidate and his views.4
The United States Supreme Court decisions consistently protect
advocacy by non-profit organizations in the election law context. Express
advocacy includes "express words of election or defeat, such as ‘vote for,’
‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for congress,’ ‘vote
against,’ ‘defeat,’ ‘reject.’"5 The "major purpose" of an
organization is the nomination or election of a candidate if that is "its
central organizational purpose" or if a majority of its "activities [are] on
behalf of political candidates."6 Thus, as long as a church avoids
using express advocacy for a candidate, and its major purpose and activities
continue to promote religion, it may discuss the moral and social issues that it
considers important. The First Amendment protects its right to do so.
The First Amendment requires a broader definition of
Using the above bright line tests, Section 501(c)(3) is not nearly as
restrictive as the IRS would have us believe. As the 2004 elections approach,
the need for clear guidelines on the permissible political activities of
churches and pastors becomes great. This paper provides these guidelines based
upon the requirements of the Federal Election Campaign Act, the Internal Revenue
Code, the First Amendment, and the United States Supreme Court precedents.
These are guidelines for action recommended to insure that churches and
pastors conform with the law, but not necessarily with Internal Revenue Service
interpretations of the law. One caution - state laws may be more restrictive
than these guidelines and, therefore, in applying them to specific situations,
particularly state elections, you should consult your own local counsel.
IRS Tax Exempt Status of Churches
Almost all churches are exempt under Section 501(c)(3) of the
Internal Revenue Code on the basis that they are "operated exclusively for
religious, charitable . . .or educational purposes." As a 501(c)(3) exempt
organization, a church:
a) is exempt from paying corporate income taxes and donations to it are tax
deductible on federal tax returns, and
b) may expend funds for religious, charitable and educational purposes and an
insubstantial amount on lobbying and to promote legislation.
A 501(c)(3) exempt organization, however, may not "participate in, or
intervene in (including the publishing or distributing of statements), any
political campaign on behalf of any candidate for public office." Thus, a church
may not participate in a political campaign by expenditure of its funds. Not all
political activity which would influence a political campaign, however,
falls under this prohibition.
Political activities referred to here are activities which influence
the election of candidates for political office – most of which are referred to
as electioneering. Activities which can influence the election of a political
candidate are quite broad and range from contributions to a political candidate
to activities such as publishing the voting record of incumbents running for
reelection. Only some of these activities are considered active electioneering
which cannot be done by a church, some of this activity can even be done by
501 (c)(3) organizations; it depends on the type of activity.
Active electioneering cannot be done by a church. Active electioneering
involves actions such as endorsement of candidates and expenditures of funds to
expressly advocate the election or defeat of a candidate for political office.
Active electioneering is of three types: (1) a direct contribution which is a
monetary contribution given to a candidate, (2) in-kind contributions
which include giving things of value to a candidate (such as a church mailing
list) and paying for a communication which expressly advocates the election or
defeat of a clearly identified candidate made in consultation with or with the
knowledge of the candidate, and (3) independent expenditures which are
expenditures expressly advocating the election or defeat of a political
candidate made without the knowledge of or consultation with any
Individuals, however, such as individual pastors, may participate in
political campaigns, as long as they do so as individuals, not in the name of
the church. Any individual, including a pastor, may wear different hats at
different times and, therefore, be involved in political activity, as long as he
is wearing the right hat.
Pastors, as individuals, have the same rights as all other American
citizens to involve themselves in political activity. Pastors thus have much
greater latitude to involve themselves in political activities than does a
church. The following should guide a pastor regarding personal political
activities which may relate to his church position:
1 .A pastor may individually and personally endorse candidates for political
office, but a pastor may not endorse candidates on behalf of his church.
2. A pastor’s personal endorsement may be made from the pulpit if it is clear
that it is his personal view and not that of the church itself.
3. A pastor may allow his name to be used as a supporter of a candidate in
the candidate’s political advertisements. In this connection, the pastor may be
identified as pastor of a particular church.
4. While a church may not establish a political action committee, pastors and
other like-minded individuals may establish a political action committee, but
care should be taken that the committee is separate from the church and no use
is made of church assets or facilities except to the extent that church
facilities are allowed to be used by other outside groups.
Guidelines for Political Activities of Churches and Pastors
The following is a list of activities that may be considered
political activities in the broad sense and that a church or pastor, in his
individual capacity and using his own funds, may wish to do.
First, churches and pastors may discuss the positions of candidates on
issues – including criticizing or praising them for their positions. This is
called issue advocacy.
Second, pastors, as individuals, may endorse candidates, and publish
their endorsements at their own expense. The endorsement of a candidate includes
any statement which uses explicit words to expressly advocate the election or
defeat of a clearly identified candidate, such as "elect," "support," "defeat,"
or "oppose." This is called express advocacy. A church may not engage in express
advocacy, but a pastor, in his individual capacity, may.
Third, pastors as individuals may contribute to political candidates,
churches may not. In-kind expenditures are non-cash benefits provided to a
political candidate. Pastors may make in-kind expenditures in favor of or
against political candidates, but churches may not.
Fourth, pastors may make independent expenditures for such advertising as
long as they don’t utilize church property. Churches may not make such
expenditures. Independent expenditures are expenditures for advertising in favor
of or against political candidates, that are not coordinated with the candidate,
and are not approved by the candidate.
Fifth, pastors may contribute to political action committees, or PACs,
but churches may not.
Sixth, pastors may pay the expenses for a person to attend a caucus of a
state/national convention, churches may not.
Seventh, a political candidate may appear at a church service. The
appearance of a candidate before a church service, however, is limited as
follows: (a) any other candidate for the office or any other political party who
is a candidate for the office who requests to appear must be given the same
opportunity, and (b) no solicitation for funds for the candidate or endorsement
of the candidate may be made by any representative of the church.
In addition, a church may allow political candidates to have a meeting or
use the facilities of the church on the same basis that civic groups and other
organizations are allowed to. If civic groups and other organizations are
required to pay some rent for using the church property, the political candidate
should be charged the same amount.
Eighth, a church may publish or distribute the results of surveys of
candidates on public issues. Such surveys, however, must be non-partisan. As a
result, 501 (c) (3) church groups should observe the following conditions in
publishing or distributing the survey:
1. publish the response of all the candidates for the particular office by
use of "yes" and "no". Avoid use of "+" and "-" or "pro-life" and "anti-life".
The survey should not specify what is the desired response;
2. do not include any words indicating either endorsement of or support for
any of the candidates or indicate that the reader should "vote pro-life."
Advocacy of one issue voting should be reserved for other issues of the church
bulletin when the survey is not published; and
3. do not publish the response to the survey under the control, direct or
indirect, of any candidate.
It is preferable that candidate surveys involve a variety of issues, but this
is not required.
Ninth, churches may also publish the voting records of incumbent public
officeholders. In the case of publication of voting records, the church has more
leeway than in publishing candidate surveys as follows:
1. the church, in publishing the incumbent’s votes on particular issues, may
indicate the church’s view and the fact that the incumbent supported or opposed
the church’s view. Thus, "+" or "-" or "pro-life" and "anti-life" may be used,
2. in other respects, the publications should be non-partisan. As a result,
the voting records of all incumbents in the area should be presented, candidates
for reelection should not be identified, no comment should be made on an
individual’s overall qualifications for public office, and no statements
expressly advocating the election or defeat of any incumbent as a candidate for
public office should be offered.
Tenth, pastors may distribute candidate political statements at their own
expense, but may not distribute them at church. Churches may not distribute
candidate political statements, but they may permit distribution by others of
candidate political statements in their church parking lot.
Eleventh, lists of members of the church congregation may be rented to
candidates for their use in seeking support or raising funds. The candidate must
pay the fair market value for the list, if it is rented from the church. The
church must offer the list to all candidates on the same terms
Twelfth, a church may participate in non-partisan voter education. Here,
voter education involves discussion of the electoral process, such as how to run
for public office or delegate, how to register, where to vote, helping or
assisting people to register and get out the vote drives. All such activity is
permissible as long as it is not directed at one party or candidate over
Thirteenth, a church may publish an ad for a political candidate in its
bulletin or newsletter, as long as the ad is purchased at the regular rate for
such ads published in that publication. If discounts are given regular
advertisers under certain circumstances, the same discounts may be extended to
the political advertiser. In addition, the church may be selective in printing
ads–for instance, only ads from pro-life candidates may be accepted. A political
ad may not be sold to a candidate at less than the regular rate since this would
constitute a political contribution to the candidate.
Fourteenth, a church may publish without limitation news stories on
political candidates, political campaigns and endorsements of political
candidates by political organizations. The publication of voting records and
candidate surveys in bulletins are subject to the limitations delineated in item
Fifteenth, a church may not publish an editorial supporting or
endorsing a candidate for political office. This would be considered a church
endorsement, which it may not do.