By Benjamin Leff
A few days ago, my good friend and fellow Subgrouper, David Herzig, wrote a post about Donald Trump’s appearance at a church in Flint Michigan, the Bethel United Methodist Church. Herzig argued in his post (and on Twitter) that the interruption of Trump’s attacks on Hilary Clinton by the church’s pastor, Rev. Timmons, was necessary to protect the church from violating the prohibition on campaign-related speech by churches (and other charities). He also quoted Professor Lloyd Mayer’s tweet on the topic, arguing that the church could have violated the prohibition simply by permitting Trump to speak at all, regardless of the topic. I lamely tweeted back that the short video that had been released failed to provide sufficient facts to make a determination about whether the church violated the law or not. I want to say more about the law and the IRS’s current interpretation of the law to supplement Herzig and Mayer’s valiant efforts, since I think I have a slightly different view on the issue than either of them.
The most important point is that the Constitution protects all churches’ right to engage in speech (as well as religious practice). Statutory law — including the prohibition on campaign intervention (sometimes called the “Johnson Amendment”) — does not (could not) interfere with those very basic and fundamental rights. In my view, the IRS’s interpretation of the law gets some things a little bit wrong, but even its interpretation is extremely permissive of speech that takes place in churches and other charities in deference to their very real speech rights.
So, what’s the law with respect to hosting a political candidate at a church or other charity (including, by the way, a university)? Is it the case that any appearance by a known candidate at any event hosted by a 501(c)(3) organization is a violation of the law? The best evidence of the IRS’s view of the law is the IRS’s most explicit guidance on the subject, Revenue Ruling 2007-41, which contains an entire section entitled “Candidate Appearances.” The very first sentence of that section is, “Depending on the facts and circumstances, an organization may invite political candidates to speak at its events without jeopardizing its tax-exempt status.” So, it cannot be that merely inviting a candidate is problematic. The guidance goes on to explain that a candidate could be invited to speak in their capacity as a candidate or not, and that if they are invited as a candidate, three factors are relevant to determining whether the organization has improperly engaged in campaign intervention. These factors are: “[i] Whether the organization provides an equal opportunity to participate to political candidates seeking the same office; [ii] Whether the organization indicates any support for or opposition to the candidate (including candidate introductions and communications concerning the candidate’s attendance); and [iii] Whether any political fundraising occurs.”
Professor Mayer was therefore entirely correct when he tweeted that it would be relevant whether Clinton had also been invited. But note, according to the guidance, it is the invitation that is important, not whether she accepted it. More importantly, inviting other candidates is only one of three relevant factors. Arguably, even if Trump was the only candidate invited, if the reverend did not indicate her support for or opposition to his candidacy, and if no political fundraising occurred at the event, then no campaign intervention occurred. Remember, that is true even when Trump is appearing in his capacity as a candidate. Therefore, Rev. Timmons’s caution that he stop speaking about politics was entirely unnecessary under the law. It’s her church, and so of course she can invite candidates to speak about whatever she wants, but no law requires her to prevent Trump from speaking as a candidate or making his case that her congregation vote for him. What the law requires (as interpreted by the IRS) is that Rev. Timmons not use Trump’s appearance as a way for the church to express its own view about whether he should be elected or defeated. As interpreted by the IRS, the law is directed at Rev. Timmons communicating the church’s views, not at Trump communicating his own from their altar.
Previously on this blog, I have mentioned obliquely my own view that some aspects of the IRS’s interpretation of the campaign-intervention prohibition probably violates the free-speech rights of churches and other charities. As I’ve written elsewhere, the IRS should focus on the money spent by a church or other charity rather than on whether a listener can glean the church’s opinions from its actions. I think that’s the only way for the prohibition to be interpreted consistent with the Constitution.
This example actually doesn’t do such a bad job of illustrating why it would also make better policy for the IRS to refocus its interpretation away from endorsement and towards use of funds or resources. Under the IRS’s interpretation of the law, there is absolutely nothing wrong with the church inviting Trump to present to the world his case for his candidacy from the church’s pulpit, so long as the church also invited Clinton, regardless of whether Clinton accepted the invitation. Even if the church refrained from inviting Clinton, there’s a pretty good argument that Trump’s appearance does not violate the prohibition so long as the church does not permit political fundraising to occur during the event and so long as it refrains from expressing its own view about Trump’s candidacy.
In other words, if Rev. Timmons did nothing but smile and be polite to Trump, there would likely be no violation. But, if instead she challenged him, with scripture or teachings of the church, or simple common sense or decency, then the church may have violated the law. I can’t help but say it plainly, that’s fucked up. I know that usually candidates will speak at congregations and organizations that support them, and so this critical voice will rarely be invoked, law or no law. But a situation in which the leaders of our communities — sometimes charged by God to speak to us the truth as they see it — think that they are required by law to keep their silence … that seems really bad to me.