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What Are the "Do’s" and "Don’ts" for Churches?

by James Bopp, Jr., Attorney at Law

A Symposium for Attorneys and Clergy

Ave Maria School of 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

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 not mentioned.

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 Revenue Service.

The Solution

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 wide-open."1 However,

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 "political intervention."

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

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 candidate.

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, and

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 another.

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 nine above.

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.


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