As the 2008 election has come to a close, various groups have launched intimidation tactics in an effort to silence  churches and pastors about the great social and moral issues of our time. Churches and pastors need clear guidelines for permissible political activities to answer to these attacks. In response to that need, Alliance Defense Fund, The James Madison Center For Free Speech, Focus on the Family, Concerned Women for America, and Family Research Council are providing these guidelines to ensure that pastors and churches are not silenced during this next campaign cycle. In addition, the Alliance Defense Fund and the James Madison Center are prepared to respond free of charge to inquiries by churches, pastors and priests on permissible political activities through informal e-mails, telephone advice and legal opinion letters.

Recently, we have seen groups like Americans United for Separation of Church and State send misleading letters to churches through its so-called “Project Fair Play” in an effort to muffle the voice of churches and pastors on critical social issues. Sometimes churches are even threatened with the loss of their tax-exempt status, and bogus complaints are filed with the Internal Revenue Service, occasionally leading to IRS investigations. Thus, the remote possible loss of tax-exempt status is used by those hostile to people of faith to chill their right of free speech and to silence them in their own churches.

The groups that have resorted to scare tactics repeatedly speak out of both sides of their mouths. On the one hand, when people of faith speak out about moral issues in public, they are accused of attempting to force their religion upon others; but when they speak of moral issues in church, they are accused of engaging in politics. The Jeffersonian “wall of separation” doctrine has been twisted in an attempt to silence people of faith not only in the public square, but also in their churches. This attitude is an unofficial but outspoken bias against people of faith.

Such tactics are not new. They have been tried time and again, and have consistently failed. For example, in 1996, 1998 and 2000, pro-homosexual activists targeted churches that supported a proposition in California that defined marriage as being between one man and one woman. In one mailing, activists sent out some 80,000 threat letters. See Erik J. Ablin, The Price of Not Rendering to Caesar: Restrictions on Church Participation in Political Campaigns, 13 Notre Dame J. L. Ethics & Pub. Pol’y 541, 557 (1999). These would-be censors failed to suppress Christian speech—the California measure ultimately passed and no church had its taxexempt status revoked. Churches and pastors must not allow these tactics of hate and intolerance to succeed in 2008.

By this letter, we assure you that churches and pastors have broad constitutional rights to express their views on a broad array of social issues such as marriage, abortion, and homosexual behavior. Furthermore, other activities such as allowing parishioners to sign petitions in support of traditional marriage are almost undoubtedly permissible under federal tax law. In the same way, the First Amendment to the United States Constitution most likely prevents states from demanding that churches register as “political committees” or report “contributions” when the churches merely preach about issues or allow petitions to be signed at their facilities.

If you are contacted by any government official or private activist group on such issues, please call either the Alliance Defense Fund or the James Madison Center immediately. Attorneys will promptly review your situation and make every effort to defend your church’s legal rights to speak freely in support of important social and moral issues. Below we briefly discuss the relevant law.

This concise overview summarizes the requirements of the Federal Election Campaign Act and the Internal Revenue Code as they apply to churches and pastors. As guidelines, they may not address every situation that you face and should not be construed as legal advice relevant to your specific set of facts. However, churches and pastors may obtain legal advice free of charge regarding your particular situation by contacting the Alliance Defense Fund at 1-800-TELLADF or www.telladf.org.

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:

(1) is exempt from paying corporate income taxes;

(2) donations to it are tax deductible on federal tax returns and;

(3) it may expend funds for religious, charitable and educational purposes and an insubstantial amount on lobbying and to promote legislation.4

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 on behalf of or against a candidate by expenditure of its funds or use of its facilities. Still, not all political activity that would influence an election falls under this prohibition.

Political Activities

Political activities referred to here are activities which influence the election of candidates for public 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 who are also running for reelection. Only some of these activities are considered active electioneering which cannot be done by a church, but many of these activities can be done by a 501(c)(3) organization or its pastors.

“Active” electioneering cannot be done by a church. Active electioneering involves actions such as endorsements of candidates and expenditures of funds to expressly advocate the election or defeat of a particular 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 anything of value to a candidate (such as a church mailing list) or paying for a communication that expressly advocates the election or defeat of a clearly identified candidate made in coordination with a candidate, and (3) independent expenditures expressly advocating the election or defeat of a political candidate made without the knowledge of or consultation with any candidate.

Issue-oriented speech can also influence elections. Issue advocacy, however, may not be limited by government and may be freely engaged in by churches. Issue advocacy includes the discussion of issues of public concern, the actions of government officials in office and even the positions of candidates on issues. As long as one does not use explicit words expressly advocating the election or defeat of a clearly identified candidate, one is free to praise or criticize officials and candidates with regard to their positions on certain topics.

Pastors Have Separate Rights

Individuals, such as pastors or priests, may participate in political campaigns, as long as they do so as individuals, and 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 they are wearing the right hat at the right time and place.

Pastors and priests, 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. Individual pastors can endorse political candidates so long as the endorsement is not on behalf of the Church and it is not made in a way that gives the appearance that the endorsement is made in the capacity of pastor or priest.

Pastors are understandably concerned about the legal effects of political activity on themselves and their churches, but should be aware that they are not required to remain silent and passive. Their voices and views can be exercised publicly so long as the basic guidelines are followed.

Summary

 

As we approach another election season, it is important that we make it clear that the would-be censors of political speech have sent a confusing, if not misleading message about what can rightfully be done. We have enclosed a chart of activities that may be considered political activities in the broad sense and have identified those activities which it is permissible for churches and pastors to participate.6 We hope this will guide you and encourage you to speak the Truth, to be an advocate for the godly principles and family values, and to be salt and light to this generation.