By Sam Brunson
Pity the IRS.[fn1] It is, right now, stuck in the middle of a battle over religion. See, churches, like other public charities, are exempt from tax under section 501(c)(3). But the exemption comes with certain limitations, including an absolute prohibition on supporting or opposing candidates for office.
This prohibition has become something of a culture wars battleground, at least with respect to churches. Some churches argue that they have a moral and religious obligation to support candidates whose actions are in line with their beliefs, or, alternatively, to oppose candidates whose actions violate their beliefs. As such, they claim this prohibition violates their Free Exercise rights, and is unconstitutional, at least as applied to churches.
The funny thing is that, as best I can tell, only one church has ever lost its tax exemption for violating this campaigning prohibition.
Though not for lack of trying. Over the last eight years or so, the Alliance Defending Freedom has sponsored an annual event it calls Pulpit Freedom Sunday, in which pastors preach a sermon that expressly violates the prohibition, then send a copy of their sermon to the IRS. Of the possibly thousands of churches that have participated over the years, none have lost their exemptions.
The Freedom From Religion Foundation noticed the IRS’s lack of response and, in 2012, sued to compel the IRS to enforce the campaigning prohibition. In 2014, it announced that it was dismissing the case, because FFRF and the IRS had come to an agreement resolving the FFRF’s concerns about the IRS’s treatment of church campaigning.[fn2]
Not long after the FFRF suit was (at least temporarily) resolved, the ADF jumped in, filing a FOIA request for records relating to changes to its church audit procedures. The IRS (belatedly, according to ADF) produced fewer than half of the documents requested, and the requested documents were allegedly heavily redacted.[fn3]
I’m not interested here in opining on the constitutional validity of the campaigning prohibition, either writ large or as applied to churches. There’s abundant scholarship arguing both for and against the prohibition’s constitutionality. I do want to suggest, though, that the IRS has a way out of being the scapegoat-in-the-middle for these religious culture wars: it should revoke some church exemptions.
FFRF wants the IRS to enforce the provision. ADF wants to create a test case. And, frankly, I suspect a lot of churches want some kind of certainty.
I recognize that, besides being stuck in the middle, the IRS is stuck in what appears to be a no-win-situation. It has been villanaized by the FFRF and its allies for not enforcing the provision. If it starts, it risksbeing villainized by the ADF and its allies for infringing on religious liberty. Either way, it seems to have significant downside without the possibility of upside.
All that said, by revoking the tax-exempt status of churches that violate the prohibition, it can finally put the constitutional question in front of the courts.
And, as I discuss in a recent law review article, it can do so without incurring significant enforcement costs and without being accused of being engaged in a partisan witch-hunt. And it can do so without imposing litigation costs on any church that doesn’t want to bear them. How?
- Over the next couple months, the IRS should announce that it will revoke the tax exemption of any church that participates in Pulpit Freedom Sunday and violates the campaigning prohibition.
- The IRS should review any sermon that a church sends itself, not for content, but solely to ensure that the sermon does, in fact violate that campaigning prohibition.
- The IRS should revoke the exemptions of all of the sermons it receives that do, in fact, violate the campaigning prohibition.
A little further explanation: with advance notice, any church that really doesn’t want to fight this fight can avoid it by not preaching a violative sermon. Or, if it does, it can choose not to send the sermon to the IRS. And the IRS should only review sermons sent by the church itself, not sermons sent by whistleblowers. Basically, this would set up a series of test cases, and with presumably plenty of confident and willing participants, there’s no need to investigate more.
This way, too, the IRS doesn’t have to expend resources (initially, at least) to find churches.
It may be that the churches losing their exemptions are primarily conservative churches, supporting Ted Cruz. It could be that they’re primarily liberal, supporting Bernie Sanders. But if the IRS has announced objective criteria, and only revokes the exemptions of churches that voluntarily participate, there’s no good-faith way to accuse it of going after only churches with particular political ideologies.
My proposal isn’t perfect, of course: even if the Supreme Court blesses the campaigning prohibition, the IRS has limited upside in revoking church exemptions: these revocations won’t raise a significant amount of revenue for the government, and probably won’t make the IRS more popular with the general taxpaying public.
But it will provide guidance to churches, and it will allow the IRS to focus on adminstering the tax law, rather than being buffeted by the religious culture wars.
[fn2] In the original reports, it sounded like there was an actual contractual agreement between the two; I emailed the FFRF to ask if I could see it, and received a very nice email in response telling me the relevant information was here and here. It’s interesting information (including the docket from the case!), but it doesn’t lay out the terms of their agreement, if any.
[fn3] I said pity the IRS. And I meant it. But I didn’t mean that the IRS never committed unforced errors.