Trump, Churches and Politics

Photo: Evan Vucci/AP

By David J. Herzig

One of the leads in today’s news cycle was the Flint Pastor, Rev. Faith Green Timmons of the Bethel United Methodist Church, interrupting Republican Presidential Candidate Donald Trump during a speech at her church.

According to the story, Rev. Timmons, intervened during Mr. Trump’s speech  when he started attacking Democratic Presidential Candidate Hillary Clinton stating, “Mr. Trump, I invited you here to thank us for what we’ve done in Flint, not give a political speech, …”. To which Mr. Trump responded, “OK. That’s good. Then I’m going back onto Flint, OK? Flint’s pain is a result of so many different failures, …”.

I headed to Twitter to state that Rev. Timmons was doing the right thing protecting her churches charitable exemption by halting the political speech.  Quick blackletter law: churches, like other public charities, are exempt from tax under section 501(c)(3). But like all exemptions there are certain limitations, including an absolute prohibition on supporting or opposing candidates for office.  In IRS Publication 1828, the IRS position is clear,  “churches and religious organizations, are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”  (For a primer on the topic, my co-blogger Sam Brunson wrote for Surly here and for a full blown analysis see his work for University of Colorado’s law review here).  Churches can’t (although they often do) engage in political speech.  Maybe Rev. Timmons was attempting to protect the church’s exemption.

However, as Lloyd Mayer pointed out on Twitter, having a candidate appear at your church two months before the election might in itself be political speech regardless of the topic actually discussed.  This would be true unless the church gave the same amount of “air time” to the opponent.  Publication 1828 supports Professor Mayer’s view.  Statements made by the religious leader of the church at an official church function or through use of the church’s assets would be improper political campaign intervention.  Hosting only one candidate regardless of the topic would seem to be an endorsement of that candidate and thus improper political campaign intervention.

Further, given that the church invited Mr. Trump to speak, the church could not hide behind the business activity exception.  Essentially, churches can rent space to candidates if they allow the public at large to rent the same space at the the same rates.  If a church or religious organization sells or rents of mailing lists, leases office space, etc., more often than not the church has not violated the political campaign intervention rules.  This is true as long as “the good, service or facility is available to the candidates equally; whether the good, service or facility is available only to candidates and not to the general public; whether the fees charged are at the organization’s customary and usual rates; and whether the activity is an ongoing activity of the organization or is conducted only for the candidate.”

If the Bethel United Methodist Church was found to violate the improper campaign intervention rules, the consequences would be numerous.  The most important consequence is loss of 501(c)(3) status (very unlikely).  The most likely consequence is imposition of excise tax. According to Publication 1828, “[a]n initial tax is imposed on an organization at the rate of 10 percent of the political expenditures. Also, a tax at the rate of 2.5 percent of the expenditures is imposed against the organization managers (jointly and severally) who, without reasonable cause, agreed to the expenditures knowing they were political expenditures. The tax on management may not exceed $5,000 with respect to any one expenditure. In any case in which an initial tax is imposed against an organization, and the expenditures are not corrected within the period allowed by law, an additional tax equal to 100 percent of the expenditures is imposed against the organization. In that case, an additional tax is also imposed against the organization managers (jointly and severally) who refused to agree to make the correction. The additional tax on management is equal to 50 percent of the expenditures and may not exceed $10,000 with respect to any one expenditure.”  I wonder if Mr. Trump would pay those fines like he did for his own private foundations IRS violations.

Additionally, there would be a requirement that the church establish safeguards to prevent future political expenditures.  Finally, the church would have to look to federal, state or local election laws, to determine any ancillary violations.

Maybe Mr. Trump was very serious at the Republican National Convention when he stated “They have much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits,” And, “An amendment, pushed by Lyndon Johnson many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views. Their voice has been taken away,” Trump said. “I am going to work very hard to repeal that language and to protect free speech for all Americans.”  What better case to test the Johnson Amendment than a presumably democratic leaning church being hit with an excise tax for hosting a republican candidate for office?