[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
REVIEW OF INTERNAL REVENUE CODE
SECTION 501(c)(3) REQUIREMENTS FOR
RELIGIOUS ORGANIZATIONS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 14, 2002
__________
Serial No. 107-69
__________
Printed for the use of the Committee on Ways and Means
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WASHINGTON : 2002
____________________________________________________________________________
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COMMITTEE ON WAYS AND MEANS
BILL THOMAS, California, Chairman
PHILIP M. CRANE, Illinois CHARLES B. RANGEL, New York
E. CLAY SHAW, Jr., Florida FORTNEY PETE STARK, California
NANCY L. JOHNSON, Connecticut ROBERT T. MATSUI, California
AMO HOUGHTON, New York WILLIAM J. COYNE, Pennsylvania
WALLY HERGER, California SANDER M. LEVIN, Michigan
JIM McCRERY, Louisiana BENJAMIN L. CARDIN, Maryland
DAVE CAMP, Michigan JIM McDERMOTT, Washington
JIM RAMSTAD, Minnesota GERALD D. KLECZKA, Wisconsin
JIM NUSSLE, Iowa JOHN LEWIS, Georgia
SAM JOHNSON, Texas RICHARD E. NEAL, Massachusetts
JENNIFER DUNN, Washington MICHAEL R. McNULTY, New York
MAC COLLINS, Georgia WILLIAM J. JEFFERSON, Louisiana
ROB PORTMAN, Ohio JOHN S. TANNER, Tennessee
PHIL ENGLISH, Pennsylvania XAVIER BECERRA, California
WES WATKINS, Oklahoma KAREN L. THURMAN, Florida
J.D. HAYWORTH, Arizona LLOYD DOGGETT, Texas
JERRY WELLER, Illinois EARL POMEROY, North Dakota
KENNY C. HULSHOF, Missouri
SCOTT McINNIS, Colorado
RON LEWIS, Kentucky
MARK FOLEY, Florida
KEVIN BRADY, Texas
PAUL RYAN, Wisconsin
Allison Giles, Chief of Staff
Janice Mays, Minority Chief Counsel
______
Subcommittee on Oversight
AMO HOUGHTON, New York, Chairman
ROB PORTMAN, Ohio WILLIAM J. COYNE, Pennsylvania
JERRY WELLER, Illinois MICHAEL R. McNULTY, New York
KENNY C. HULSHOF, Missouri JOHN LEWIS, Georgia
SCOTT McINNIS, Colorado KAREN L. THURMAN, Florida
MARK FOLEY, Florida EARL POMEROY, North Dakota
SAM JOHNSON, Texas
JENNIFER DUNN, Washington
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Ways and Means are also published
in electronic form. The printed hearing record remains the official
version. Because electronic submissions are used to prepare both
printed and electronic versions of the hearing record, the process of
converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
__________
Page
Advisory of May 7, 2002, announcing the hearing.................. 2
WITNESSES
Internal Revenue Service, Steven T. Miller, Director, Exempt
Organizations.................................................. 6
______
Americans United for Separation of Church and State, Reverend
Barry W. Lynn.................................................. 47
American Center for Law & Justice, Colby M. May.................. 23
Coral Ridge Ministries, D. James Kennedy......................... 53
Hopkins, Bruce R., Polsinelli, Shalton & Welte................... 12
Interfaith Alliance, Reverend C. Welton Gaddy.................... 38
National Council of Churches of Christ in the USA, Brenda Girton-
Mitchell....................................................... 56
New Bethel Baptist Church, Hon. Reverend Walter E. Fauntroy...... 43
SUBMISSIONS FOR THE RECORD
Alliance for Justice, Nan Aron, letter........................... 85
American Jewish Committee, statement............................. 86
American Jewish Congress, statement.............................. 86
Anti-Defamation League, New York, NY, statement.................. 92
Baptist Joint Committee, J. Brent Walker, and K. Hollyn Hollman,
letter and attachment.......................................... 93
Bopp, James, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN,
statement...................................................... 94
Edwards, Hon. Chet, a Representative in Congress from the State
of Texas, statement............................................ 100
Islamic Supreme Council of America, statement.................... 101
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina, statement............................. 102
Maryland Bible Society, Reverend Raymond T. Moreland, letter..... 103
National Council of Nonprofit Associations, Audrey R. Alvarado,
letter......................................................... 103
OMB Watch, Kay Guinance, statement............................... 104
People for the American Way, Ralph G. Neas, and Stephenie Foster,
letter......................................................... 106
Religious Freedom Coalition, William J. Murray, statement........ 106
Rutkowski, Robert E., Topeka, KS, letter......................... 107
Soka Gakkai International-USA Buddhist Association, Bill Aiken,
letter......................................................... 109
Union of Orthodox Jewish Congregations of America, Harvey Blitz,
Richard B. Stone, Rabbi T. Hersh Weinreb, and Nathan J.
Diament, letter................................................ 109
Wood, William, Charlotte, NC, statement.......................... 110
Aiken, Bill, Soka Gakkai International-USA Buddhist Association,
letter......................................................... 109
Alvarado, Audrey R., National Council of Nonprofit Associations,
letter......................................................... 103
Aron, Nan, Alliance for Justice, letter.......................... 85
Blitz, Harvey, Union of Orthodox Jewish Congregations of America,
letter......................................................... 109
Diament, Nathan J., Union of Orthodox Jewish Congregations of
America, letter................................................ 109
Foster, Stephenie, People for the American Way, letter........... 106
Guinance, Kay, OMB Watch, statement.............................. 104
Hollman, K. Hollyn, Baptist Joint Committee, letter and
attachment..................................................... 93
Murray, William J., Religious Freedom Coalition, statement....... 106
Neas, Ralph G., People for the American Way, letter.............. 106
Stone, Richard B., Union of Orthodox Jewish Congregations of
America, letter................................................ 109
Walker, J. Brent, Baptist Joint Committee, letter and attachment. 93
Weinreb, Rabbi T. Hersh, Union of Orthodox Jewish Congregations
of America, letter............................................. 109
REVIEW OF INTERNAL REVENUE CODE SECTION 501(c)(3) REQUIREMENTS FOR
RELIGIOUS ORGANIZATIONS
----------
TUESDAY, MAY 14, 2002
House of Representatives,
Committee on Ways and Means,
Subcommittee on Oversight,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:00 p.m., in
room 1100 Longworth House Office Building, Hon. Amo Houghton
(Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY FROM THE COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON OVERSIGHT
Contact: (202) 225-7601
FOR IMMEDIATE RELEASE
May 7, 2002
No. OV-12
Houghton Announces Hearing on the Review
of Internal Revenue Code Section 501(c)(3)
Requirements for Religious Organizations
Congressman Amo Houghton (R-NY), Chairman, Subcommittee on
Oversight of the Committee on Ways and Means, today announced that the
Subcommittee will hold a hearing to review Internal Revenue Code
(I.R.C.) Section 501(c)(3) requirements for religious organizations.
The hearing will take place on Tuesday, May 14, 2002, in room 1100
Longworth House Office Building, beginning at 2:00 p.m.
In view of the limited time to hear witnesses, oral testimony at
this hearing will be from invited witnesses only. However, any
individual or organization not scheduled for an oral appearance may
submit a written statement for consideration by the Subcommittee and
for inclusion in the printed record of the hearing.
BACKGROUND:
I.R.C. Sec. 501(c)(3) organizations--such as religious, charitable,
educational, scientific, and literary organizations--enjoy certain
benefits because of their tax-exempt status:
Being exempt from Federal income taxation under I.R.C.
Sec. 501(a), and
Allowing contributors to take tax deductions under I.R.C.
Sec. 170(a) for charitable contributions.
However, Sec. 501(c)(3) organizations also have certain
restrictions and limitations imposed on their allowable activities,
including lobbying and political activity.
All Sec. 501(c)(3) organizations may attempt to influence
legislation as long as it does not constitute a ``substantial part'' of
the organizations' overall activities. In addition, Sec. 501(c)(3)
organizations can elect to use an alternative I.R.C. Sec. 501(h) safe-
harbor ``expenditure test,'' in which the I.R.C. outlines specific
expenditure limits in I.R.C. Sec. 4911 that may be spent on lobbying
activities. However, churches, along with church-related organizations
outlined in I.R.C. Sec. 501(h)(5), were excluded from this
``expenditure test'' election at their own request.
All Sec. 501(c)(3) organizations must not ``participate in, or
intervene in (including the publishing or distributing of statements),
any political campaign on behalf of (or in opposition to) any candidate
for public office.'' Violation of this political activity prohibition,
which has been in existence since 1954, can result in the organization
losing its tax-exempt status and the imposition of certain excise
taxes.
The Internal Revenue Service (IRS) has revoked one Sec. 501(c)(3)
church's tax-exempt status for violation of this political activity
prohibition. In 1992, the Church at Pierce Creek purchased a full-page
advertisement in two newspapers that attacked the views of then-
Governor Bill Clinton. The bottom of the advertisement stated that
``[t]ax-deductible donations for this advertisement gladly accepted.''
The IRS found that the newspaper advertisement was prohibited
intervention in a political campaign.
In announcing the hearing, Chairman Houghton stated, ``This is a
very complex issue, and I look forward to a careful review of this
section of the tax code.''
FOCUS OF THE HEARING:
The focus of the hearing is to review the history of and current
requirements for I.R.C. Sec. 501(c)(3) organizations. In addition, the
Subcommittee will hear testimony on two bills, H.R. 2357, the Houses of
Worship Political Speech Protection Act, and H.R. 2931, the Bright-Line
Act of 2001, that are intended to revise current tax law for religious
organizations so as to then permit certain activities that presently
are prohibited (political campaigns) and limited (lobbying) by I.R.C.
Sec. 501(c)(3) organizations.
DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:
Please Note: Due to the change in House mail policy, any person or
organization wishing to submit a written statement for the printed
record of the hearing should send it electronically to
[email protected], along with a fax copy to
(202) 225-2610, by the close of business, Tuesday, May 28, 2002. Those
filing written statements who wish to have their statements distributed
to the press and interested public at the hearing should deliver their
200 copies to the Subcommittee on Oversight in room 1136 Longworth
House Office Building, in an open and searchable package 48 hours
before the hearing. The U.S. Capitol Police will refuse sealed-packaged
deliveries to all House Office Buildings.
FORMATTING REQUIREMENTS:
Each statement presented for printing to the Committee by a
witness, any written statement or exhibit submitted for the printed
record or any written comments in response to a request for written
comments must conform to the guidelines listed below. Any statement or
exhibit not in compliance with these guidelines will not be printed,
but will be maintained in the Committee files for review and use by the
Committee.
1. Due to the change in House mail policy, all statements and any
accompanying exhibits for printing must be submitted electronically to
[email protected], along with a fax copy to
(202) 225-2610, in Word Perfect or MS Word format and MUST NOT exceed a
total of 10 pages including attachments. Witnesses are advised that the
Committee will rely on electronic submissions for printing the official
hearing record.
2. Copies of whole documents submitted as exhibit material will not
be accepted for printing. Instead, exhibit material should be
referenced and quoted or paraphrased. All exhibit material not meeting
these specifications will be maintained in the Committee files for
review and use by the Committee.
3. Any statements must include a list of all clients, persons, or
organizations on whose behalf the witness appears. A supplemental sheet
must accompany each statement listing the name, company, address,
telephone and fax numbers of each witness.
Note: All Committee advisories and news releases are available on
the World Wide Web at http://waysandmeans.house.gov/.
The Committee seeks to make its facilities accessible to persons
with disabilities. If you are in need of special accommodations, please
call (202) 225-1721 or (202) 226-3411 TTD/TTY in advance of the event
(four business days notice is requested). Questions with regard to
special accommodation needs in general (including availability of
Committee materials in alternative formats) may be directed to the
Committee as noted above.
Chairman HOUGHTON. Good afternoon, ladies and gentlemen. We
are delighted you are here. This ought to be a very interesting
session.
I would like to make a few remarks, and I would like to
suggest that Mr. Coyne make remarks if he wants to. Anybody
else who would like to say something to begin the session,
fine; and then we will turn it over to Mr. Miller and Mr.
Hopkins.
So we are here today, as most of you know, to talk about an
important issue, which is the proper role of religious groups
in politics and lobbying. section 501(c)(3) of the Tax Code
establishes requirements for charities, such as the United Way,
museums, nonprofit hospitals, animal shelters, as well as
churches, mosques, synagogues, and other religious groups.
These groups are tax exempt. Donors who make contributions to
these worthwhile organizations receive the benefit of having
the contribution tax deductible.
Two Members of Congress, my good friend, Mr. Philip Crane,
a Member of the Committee on Ways and Means, and Representative
Walter Jones have introduced legislation to change the Tax
Code. It would allow churches to engage in greater activity
than is now currently permitted.
We will hear from the Internal Revenue Service (IRS) and
one of the leading experts of tax-exempt organizations in a
minute on what the law now requires and how it is enforced.
Then we are going to hear from interested parties who represent
a variety of different backgrounds and points of view on this
issue.
The key issue at the moment is the right balance, and how
does that balance measure with the Constitution. In other
words, what activity should be permitted through one's place of
worship.
I also look forward to what I am sure will be an important
and enlightening discussion from the Members of the panel.
So I am pleased now to yield to my great friend and Ranking
Democrat, Mr. Coyne.
[The opening statement of Chairman Houghton follows:]
Opening Statement of the Hon. Amo Houghton, a Representative in
Congress from the State of New York, and Chairman, Subcommittee on
Oversight
Good afternoon. We are here today to talk about an important
issue--what is the proper role of religious groups in politics and
lobbying. Section 501(c)(3) of the tax code establishes requirements
for charities such as the United Way, museums, non-profit hospitals,
animal shelters, as well as churches, mosques, synagogues, and other
religious groups. These groups are tax-exempt. Donors who make
contributions to these worthwhile organizations receive the benefit of
having the contribution tax-deductible.
Two Members of Congress, my good friend Rep. Phil Crane, a Member
of the Ways and Means Committee, and Rep. Walter Jones, have introduced
legislation to change the tax code. It would allow churches to engage
in greater activity than is currently allowed.
We will hear from the IRS and one of leading experts in exempt
organizations on what the law now requires and how it is enforced.
Then, we will hear from interested parties who represent a variety of
different backgrounds and points of view on the issue.
The key issue is the right balance--and how does that balance
measure with the Constitution. In other words, what activities should
be permitted through one's place of worship? I look forward to what I
am sure will be an important and enlightening discussion.
Mr. COYNE. Thank you, Mr. Chairman, and welcome.
Today's hearing will provide a hearing record on the
current law as it applies to political and lobbying activities
by churches and charities. Specifically, we would review
legislation that would change the current tax law in this
particular area.
Two versions of this legislation have been proposed in this
current Congress. The Tax Code prohibits section 501(c)(3)
organizations from engaging in any political campaign
activities. The law also limits the amount of lobbying
activities that these organizations can conduct. These tax
rules have been in place for 25 years and have been
substantially modified during this time.
I look forward to the witnesses' statements about the
public interest served in restricting the activities of
organizations receiving charitable donations as well as the
concerns of churches about this policy.
The Oversight Subcommittee has a long tradition of
reviewing tax-exempt issues and organizations and their issues.
As we evaluate the issues before us this afternoon, I look
forward to continued bipartisanship in this particular area.
Thank you, Mr. Chairman.
[The opening statement of Mr. Coyne follows:]
Opening Statement of the Hon. William J. Coyne, a Representative in
Congress from the State of Pennsylvania
Today's hearing will provide a hearing record on the current law
rules applicable to political and lobbying activities by churches and
charities. Specifically, we will review legislation to change the
current tax law rules for churches, as proposed by Congressman Walter
Jones and Congressman Crane.
The tax code prohibits section 501(c)(3) organizations from
engaging in any political campaign activities. The law also limits the
amount of lobbying activities these organizations can conduct. These
tax rules have been in place for over twenty five years and have been
substantially modified during this time. I look forward to the
witnesses' statements about the public policy served in restricting the
activities of organizations receiving charitable donations, as well as
the concerns of churches in speaking freely from the pulpit.
The Oversight Subcommittee has a long tradition of reviewing the
tax-exempt organization issues. As we evaluate the issues before us
this afternoon, I look forward to continued bipartisanship in this
area. Thank you.
Chairman HOUGHTON. All right. I, too, Mr. Coyne. Thank you
very much. Mr. Crane, would you like to make a statement?
Mr. CRANE. I simply want to express my appreciation to you,
Mr. Chairman, for permitting me, not a Member of this
Subcommittee, to be here and to participate in this very
important hearing.
I have introduced legislation on this subject going back
several years, and it is something that we continue to push
toward answering some of the questions, but this kind of a
hearing is vitally important in doing that. So I just want to
congratulate you for what you have done, and I look forward to
today's hearing.
Chairman HOUGHTON. Thanks very much.
Mr. Weller, do you have a comment? No. Mr. Lewis?
Mr. LEWIS. Thank you, Mr. Chairman. I just want to thank
you for holding this hearing. I look forward to hearing from
the witnesses.
Chairman HOUGHTON. Thanks, Mr. Lewis. Ms. Dunn, would you
like to make an opening statement? All right, gentlemen, you
are on.
Mr. Miller, will you lead off?
STATEMENT OF STEVEN T. MILLER, DIRECTOR, EXEMPT ORGANIZATIONS,
INTERNAL REVENUE SERVICE
Mr. MILLER. Thank you, Mr. Chairman.
In the time available, I will concentrate on the
requirements for tax exemption as the rules apply to churches.
I will also touch on our experience in administering this area.
I request that my written testimony be made a part of the
record of this hearing.
Section 501(c)(3) of the Internal Revenue Code provides for
tax exemption of certain organizations. It does not
specifically mention churches. However, they qualify as
entities organized and operated for religious purposes. While
there are special rules applicable to churches under the
Internal Revenue Code, the lobbying and campaign intervention
rules apply not only to churches but to all section 501(c)(3)
organizations.
Let me spend a moment on lobbying restrictions. No
substantial part of a section 501(c)(3) organization's
activities can be carrying on propaganda or otherwise
attempting to influence legislation. Lobbying includes direct
communications to Members of legislatures, as well as indirect
communications that are made through the general public.
Section 501(c)(3) restricts lobbying. It does not prohibit
it. Churches are subject to the restriction although, unlike
other section 501(c)(3) organizations, they are not eligible to
file the election under section 501 (h). Section 501 (h) allows
an organization to have its lobbying activity measured by
expenditures.
Since some lobbying is acceptable under the law, it is fair
to say that the IRS has not often identified situations in
which information shows or even suggests that a church is
engaged in sufficient lobbying to justify revocation of its
status.
Let me move to the prohibition on political activity.
Section 501(c)(3) does not prohibit all activity that might be
described as political within the common meaning of that term.
Rather, it prohibits an exempt organization from directly or
indirectly participating in or intervening in any political
campaign on behalf of or in opposition to any candidate for
public office.
On the other hand, unlike lobbying, when the section
501(c)(3) limit on political campaign intervention applies, it
is absolute. Like any other section 501(c)(3) organization, a
church not only jeopardizes its tax-exempt status for
participating in a political campaign, it also becomes subject
to excise tax under section 4955 on its political expenditures.
This excise tax may be imposed in addition to or in lieu of
revocation.
I would like to touch on one rule applicable only to
churches. Under section 7611, the IRS is required to follow
special procedures, both before and during the audit of an
organization claiming to be a church.
First and foremost, the IRS may begin a church tax inquiry,
the initial step of the church audit, only when a high-level
official has a reasonable belief that the church may not be tax
exempt or may have other certain liabilities under the Code.
There are various other protections under section 7611 that are
outlined in my written testimony.
Let me take a moment to highlight our outreach efforts in
this area, because we take the approach that the most efficient
means of assuring compliance is to educate the taxpayer.
We have made the church community aware of the tax law
rules. We have disseminated to the church community and to the
public a publication containing a discussion of the rules in
this area. This publication has been widely available and
widely discussed since it was issued in July 1994. We also
remind churches and all other section 501(c)(3) organizations
each election cycle of their responsibilities in this area
through news releases. Finally, we share information with
leaders of the church community and persons who provide tax
advice to churches through various outreach opportunities.
In the coming weeks, we will release a revised version of
the above-referenced publication entitled Tax Guide for
Churches and Other Religious Organizations. We will have an
expanded discussion of the prohibition on political campaign
activity. We are also considering what other guidance may be
necessary in the area.
Moving on to a discussion of our experience in
Administration, I would first note that we fully recognize the
sensitive nature of the area. Our primary purpose here is to
influence individuals and organizations to voluntarily comply
with the law. We try to enhance voluntary compliance in as
unobtrusive a manner as possible, recognizing that the less
entanglement between the religious community and the Internal
Revenue Service the better. Such an approach is in the best
interest of both parties and is in keeping with the competing
constitutional interests in this area.
Our experience in this area indicates that the issue of
political intervention occurs infrequently in our examination
program and does not often justify the revocation of a church's
tax-exempt status.
From time to time, we find well-meaning individuals who act
out of faith but not in conformance with the law. When we come
upon this situation, we normally prefer to pursue the excise
tax, if available, and correction rather than revocation.
Correction means that the organization attempts, to the extent
possible, to undo the error and creates and adheres to
procedural safeguards to prevent the recurrence.
However, in rare and appropriate circumstances, the IRS has
and will revoke the exempt status of a church or other
organization for political activities. This is a challenging
area for us to administer, made even more so because of issues
specific to churches.
The Joint Committee on Taxation staff has commented upon
the church tax procedures under section 7611 by stating that,
while they provide important safeguards to the church
community, they may result in unintended consequences. For
example, in the church area we are most often left to use
third-party referrals of information about potential
noncompliance. In addition, there is a lack of information
available to the IRS and the public in this area. Churches do
not need to apply for a determination letter from the Internal
Revenue Service, and they don't have to file annual reports
either.
Other issues in administering the political campaign
intervention prohibition exist not just for churches but for
all section 501(c)(3) organizations. These include determining
whether the action of an individual may be attributed to the
organization and whether a given pronouncement constitutes
prohibited political campaign intervention.
Finally, the section 4955 excise tax on political
activities available to us in lieu of revocation may not be
effective in certain circumstances. That is because the tax is
based on expenditures, and certain political activities are not
readily measurable in that context.
Mr. CRANE. Mr. Chairman, could Mr. Miller use that mike to
the right of him? Obviously, that one he has is not functioning
properly.
Chairman HOUGHTON. It cuts in and out. Yes. Try that. Yes.
Mr. MILLER. All right.
Mr. CRANE. Thank you.
Mr. MILLER. A little better. Although timing is everything,
I would just want to----
Chairman HOUGHTON. You take as much time as you want now.
Mr. MILLER. As I said, for the most part, churches are
faced with the same requirements for exemption as other section
501(c)(3) organizations, including the prohibition on campaign
intervention. They are, however, afforded additional
protections under section 7611 and have fewer public reporting
requirements. It is a challenging area for us to administer.
Thank you, and I am available for comments.
[The prepared statement of Mr. Miller follows:]
STATEMENT OF STEVEN T. MILLER, DIRECTOR, EXEMPTION ORGANIZATIONS,
INTERNAL REVENUE SERVICE
Thank you Mr. Chairman, for the opportunity to provide this
Subcommittee with general background on the requirements for tax
exemption, particularly as they relate to the prohibition on political
activities. I will also discuss how these rules apply to churches, the
Internal Revenue Service's experience with these issues, and the
numerous challenges we confront in administering this law.
General Requirements for Tax Exemption
Section 501(c)(3) of the Internal Revenue Code provides for the
exemption from federal income taxation of organizations organized and
operated exclusively for religious, charitable, scientific,
educational, and certain other purposes. Section 501(c)(3) imposes a
number of conditions to exempt status:
No part of the organization's net earnings may
inure to the benefit of any private shareholder or individual.
No substantial part of the organization's
activities may be attempts to influence legislation (lobbying
restriction).
The organization may not intervene in any political
campaign on behalf of or in opposition to any candidate for
public office (political campaign prohibition).
Section 501(c)(3) does not specifically mention churches. They
qualify as entities organized and operated for religious purposes.
Thus, the above-referenced conditions apply to churches as well as all
other section 501(c)(3) entities. In addition, there are rules
specifically applicable to churches that I will outline in my
testimony.
Restriction on lobbying
One condition of exemption under section 501(c)(3) is that no
substantial part of an organization's activities can be carrying on
propaganda, or otherwise attempting to influence legislation (commonly
known as lobbying). Lobbying includes direct communications to members
of a legislature, indirect communications through the electorate or
general public (``grass roots'' lobbying), and advocating adoption or
rejection of legislation on an issue, even if specific legislation is
not pending. Whether a communication on an issue constitutes lobbying
depends on the facts and circumstances of the communication.
Section 501(c)(3) restricts lobbying; it does not prohibit it.
Churches are subject to the restriction, but unlike other section
501(c)(3) organizations, are not eligible to file the election provided
under section 501(h) of the Code to have lobbying measured by
expenditures. Although the ``no substantial part'' test is less
precise--courts have generally rejected using a percentage test as the
sole test of whether the activity is a substantial part of an
organization's activities--it is fair to say that the IRS has not
identified situations in which we received information showing, or even
suggesting, that a church was engaged in lobbying as a substantial part
of its activities.
Prohibition on Political Campaign Intervention
Section 501(c)(3) does not prohibit all activity that might be
described as ``political'' within the common meaning of that term.
Rather, it prohibits an organization seeking to be exempt from directly
or indirectlyparticipating in, or intervening in, any political
campaign on behalf of (or in opposition to) any candidate for elective
public office. Contributions to political campaign funds or public
statements of position (verbal or written) made by or on behalf of the
organization in favor of or in opposition to any candidate for public
office violate the prohibition against political campaign intervention.
The section 501(c)(3) limit on political campaign intervention is
absolute. Violation of this prohibition may result in denial or
revocation of tax-exempt status and the imposition of certain excise
taxes.
Section 1.501(c)(3)-1(c)(3)(iii) of the Income Tax Regulations
refines the prohibition on campaign intervention by defining
``candidate for public office'' as an ``individual who offers himself
or herself, or is proposed by others, as a contestant for elective
public office''. The regulation also provides that prohibited political
campaign intervention includes, but is not limited to, publishing or
distributing written or printed statements or making oral statements on
behalf of or in opposition to such a candidate. Since a candidate must
be a contestant for elective public office, section 501(c)(3) only
prohibits organizations from participating or intervening in election
campaigns.
It has been argued that the prohibition on campaign intervention
does not apply to churches. Courts have considered and rejected this
argument. In Branch Ministries, Inc. v. Rossotti, 211 F.3d 137 (D.C.
Cir. 2000), aff'g 40 F. Supp. 15 (D.D.C. 1999), the Court of Appeals
upheld the IRS's revocation of the section 501(c)(3) exempt status of
the Church at Pierce Creek. The District Court had granted summary
judgment to the IRS on its claim the organization violated the
statutory prohibition on political campaign intervention when it placed
full-page advertisements in two newspapers. The content of the
advertisement was in opposition to a candidate. The Court of Appeals
rejected the church's claims that the revocation violated the church's
right to free exercise of religion under the Constitution and the
Religious Freedom Restoration Act, and that it was the victim of
selective prosecution.
Rules Relating to Specific Issues in the Area of Political Intervention
in Campaigns
Certain activities or expenditures may or may not constitute
campaign intervention. For example, certain voter education activities
(including the presentation of public forums and the publication of
voter education guides) conducted in a non-partisan manner do not
constitute prohibited political campaign activity. On the other hand,
voter education activities that show a bias for one candidate over
another will constitute prohibited political campaign intervention. Two
examples are described below to better explain the rules in this area
and our administration.
Voter guides
Like other section 501(c)(3) organizations, some churches undertake
voter education activities by publishing voter guides. Voter guides, in
general, provide information on how candidates stand on various issues.
These guides may be distributed with the stated purpose of educating
voters. A careful review of the following may help determine whether or
not a church's publication or distribution of voter guides constitutes
prohibited political campaign activity:
Whether the guide provides information with respect
to all candidates for an office;
Whether the guide contains editorial opinion or
remarks, or otherwise indicates approval or disapproval of
candidate or their records;
Whether the guide is disseminated in close
proximity to an election;
Whether the guide covers a wide variety of issues;
and
For a candidate questionnaire, whether the
organization asks the same neutral questions of all candidates,
or indicates a bias toward the organization's preferred
responses, whether the guide is based on responses to a
questionnaire sent to all candidates, and whether the guide is
made generally available to the public.
``Get out the vote'' activities
Questions are raised about the use of church assets or funds in
``get out the vote'' activities. In this regard, whether these
activities violate the campaign prohibition depends on whether a
church's activities favor or oppose a candidate for public office.
Thus, the church's financial resources, facilities, or personnel may
not be used in get out the vote activities that favor one candidate
over another (as by only helping individuals get to the polls if they
favor a particular candidate). Of course, this does not mean that
church members may not conduct these activities independent of the
church.
Consequences of Political Campaign Intervention
Like any other section 501(c)(3) organization, a church not only
jeopardizes its tax exempt status under section 501(c)(3) for
participating in political campaign activities, it also becomes subject
to an excise tax under section 4955 on its political expenditures. This
excise tax may be imposed in addition to revocation, although in
certain situations it may be imposed instead of revocation. Also, the
church or religious organization must correct the violation to avoid
the second-tier tax under section 4955.
Section 4955 imposes an initial tax on an organization at the rate
of 10 percent of the political expenditures. It also imposes an initial
tax at the rate of 2.5 percent of the expenditures on any of the
organization's managers (jointly and severally) who, without reasonable
cause, agreed to the expenditures knowing they were political
expenditures. The initial tax on management may not exceed $5,000. 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 any of the organization's 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. Correction of a
political expenditure requires the recovery of the expenditure, to the
extent possible, and establishment of safeguards to prevent future
political expenditures.
Rules Applicable to Churches under the Internal Revenue Code
Congress has enacted tax laws applicable to churches in recognition
of their unique status in American society and of rights guaranteed
them under the First Amendment of the Constitution of the United
States. The Internal Revenue Code includes several provisions relevant
for a discussion of the treatment of churches by the Internal Revenue
Service. These provisions generally serve the purpose of preventing
needless entanglement between churches and the IRS. For example, unlike
almost any other section 501(c)(3) organization, a church need not
apply for recognition from the IRS to obtain tax-exempt status. Nor do
churches ordinarily have to file an annual information return (the Form
990) with the IRS. However, Congress recognized the need for the IRS to
ensure that churches follow the requirements for tax exemption. In this
regard, it enacted section 7611 of the Internal Revenue Code.
Section 7611 requires that the IRS follow several procedures when
auditing an organization claiming to be a church. First, a church tax
inquiry requires the approval of a high level official of the Internal
Revenue Service (the Director of Examinations for Exempt
Organizations); that is, the IRS may begin a church tax inquiry only
when a high level official believes, on the basis of facts and
circumstances recorded in writing, that the organization: may not
qualify for tax exemption as a church; may be carrying on an unrelated
trade or business; or may otherwise be engaged in an activity subject
to tax.
Under section 7611, notice to the church is required before
beginning an examination, and must include the following elements: an
explanation of the concerns that give rise to the inquiry and the
general subject matter of the inquiry in sufficient detail to allow the
church to understand which specific activity is at issue; a general
explanation of the Internal Revenue Code provision(s) that authorize
the inquiry and that may otherwise be involved; and a general
explanation of applicable administrative and constitutional provisions
involved, including the right to a conference before examination. Other
rights guaranteed under the statute and implementing regulations
include an offer of pre-examination conference, completion of any audit
tax liabilities within two years after the date on which the notice of
examination is supplied to the church, limitations on the IRS's ability
to revoke a church's tax-exempt status, limitations on the period of
assessment, limitations on additional inquiries and examinations,
required coordination with IRS counsel at various stages, and remedies
for IRS violation of the procedures.
Outreach Efforts to the Church Community by the Internal Revenue
Service
The IRS takes the approach that an educated taxpayer is generally a
compliant taxpayer. As a result, we have attempted to make the church
community aware of the tax law rules relating to political campaign
intervention. The IRS has (1) disseminated to the church community and
the public for comment, a publication (Tax Guide For Churches and Other
Religious Organizations (Draft 7/26/94)); (2) periodically reminds
churches (and all section 501(c)(3) organizations) of their
responsibilities in the area of political campaign intervention (see,
e.g., News Release 2000-47 (July 5, 2000)); and (3) shared information
with individual church leaders and persons who provide tax advice to
churches.
In the coming weeks, we will release a revised version of the Tax
Guide for Churches and Other Religious Organizations. It will have an
expanded discussion of the prohibition on political campaign activity,
including practical guidance.
Administrative Issues and Internal Revenue Service Experience in this
Area of Political Campaign Activity
The IRS is appreciative of the sensitive nature of this area. Our
mission and our hope are to influence individuals to voluntarily comply
with existing rules. Thus, we try to enhance voluntary compliance in as
unobtrusive a manner as possible recognizing that the less entanglement
the better between the religious community and the IRS. Such an
approach is in the best interests of both parties and is in keeping
with the competing Constitutional interests in this area.
Unfortunately, from time to time, we find well-meaning individuals
acting out of faith but not acting in conformance with the rules. As a
result, when we find an issue in this area, we normally prefer to
pursue correction rather than revocation. Correction means that the
organization attempts to undo the error, and creates and adheres to
procedural safeguards to prevent a recurrence.
Our experience in this area indicates that this issue occurs
infrequently in our examinations and does not often result in
revocation of tax-exempt status. However, as indicated by the Branch
Ministries case discussed above, the IRS will revoke the exempt status
of an organization for political activities in appropriate
circumstances.
This is a challenging area for the IRS to administer. This is not
the first time that Congress has reviewed our activities in this area.
This was the subject of congressional review in the 1980's, and as
recently as March of 2000, when the Joint Committee on Taxation
reported on our handling of tax-exempt organization matters. In Report
of Investigation of Allegations Relating to Internal Revenue Service
Handling of Tax-Exempt Organization Matters (JCS-3-00), the staff
looked at numerous cases, including certain church tax inquiries and
examinations. The Joint Committee staff found no credible evidence of
political motivation in the manner in which we carry out our
responsibilities.
Our administration is made more challenging in part because of
issues specific to churches. For example, at page 22 of the Joint
Committee report, staff commented upon the church tax procedures:
The Joint Committee staff found that the church audit
procedures provide important safeguards against the IRS
engaging in unnecessary examinations of churches. However, the
procedures also have the effect of (1) making it more difficult
for the IRS to initiate an examination of a church even where
there is clear evidence of impermissible activity on the part
of the church and (2) hampering IRS efforts to educate churches
with respect to actions that are not permissible, such as what
constitutes impermissible political campaign intervention.
Similarly, the lack of information available from churches (e.g.,
the fact that churches do not need to apply for a determination letter
and are not required to file an annual information return) has an
impact on our ability to determine compliance with requirements for tax
exemption. This in turn leads us to more frequent use of third-party
referrals of information about potential non-compliance in the church
area.
Other issues in this area exist not just for churches, but also for
all organizations prohibited from participating in political activity.
First, we have the issue of attribution. Was an individual making a
pronouncement in his or her individual capacity, or can the
pronouncement be attributed to the tax-exempt organization? In the
church area, the IRS is sometimes asked to consider whether campaign
advocacy by a minister or other church official may be attributed to
the church with which he or she is associated. The prohibition on
political campaign activities applies only to section 501(c)(3)
organizations, not to the activities of individuals acting in their
private capacities. Accordingly, the prohibition does not prevent a
church's minister from being involved in a political campaign, so long
as the minister does not use the church's financial resources,
facilities, or personnel, and clearly indicates that his or her actions
or statements are his or her own, and not those of the organization.
A second difficult issue we face is whether a given pronouncement
constitutes prohibited political campaign intervention. In this area
specifically, the IRS is faced with reviewing both the content and
circumstances surrounding the distribution of voter guides during
worship services or on church property.
A third issue common to churches and other non-profits is that the
sanction in this area is often misdirected. Candidates, political
fundraisers or other outsiders sometimes request churches or other
section 501(c)(3) organizations to make their resources available for
political purposes either because the outsider does not know the rules
or simply does not care. The sanction for such action is on the church
and its managers, not on the outsider.
Finally, the section 4955 excise tax that can be used in lieu of
revocation may not be effective in certain instances. The tax is based
on expenditures. Yet there are times when this excise tax does not
correspond to the prohibited intervention. For example, what is the
expenditure related to an endorsement of a candidate during a sermon
from the pulpit?
The IRS takes all these considerations into account when it
enforces or educates, but taken together they do make the area more
challenging to regulate. Thank you for your time and I am available for
any questions.
Chairman HOUGHTON. All right. Thank you very much. I forgot
to mention earlier that Mr. Miller is the Director of Exempt
Organizations of the Internal Revenue Service.
I would like to introduce Mr. Hopkins, who is----
Ms. DUNN. Now yours is doing the same thing.
Chairman HOUGHTON. Is mine doing the same thing? Let me
keep trying. Is it all right now? If I scream, is that all
right? Okay.
But, anyway, Mr. Hopkins is of Counsel with Polsinelli,
Shalton & Welte, Kansas City, Missouri. Mr. Hopkins, we are
delighted to have you here. Let's see if your mike works any
better than ours.
STATEMENT OF BRUCE R. HOPKINS, OF COUNSEL, POLSINELLI, SHALTON
& WELTE, KANSAS CITY, MISSOURI
Mr. HOPKINS. Well, let me try.
Thank you, Mr. Chairman, and other Members of the
Subcommittee. I appreciate the opportunity to be here today.
I am a lawyer in private practice. I have been practicing
in the exempt organizations field for 33 years now. I have
taught the course in two law schools and have written some
books on the subject.
Mr. CRANE. Could you swap mikes?
Mr. HOPKINS. Does that help? Apparently, it does.
I have been asked to review the history of and the current
requirements for tax exemption for public charities, with
particular attention to churches. Mr. Miller has summarized the
law in this area, making the distinctions between the rules
concerning lobbying and the rules concerning political campaign
activities, and so I will not repeat what he has said. Let me
add some comments that I have in connection with this matter.
In the lobbying area, as Mr. Miller mentioned, there is a
special set of rules, section 501(h), that public charities are
allowed to elect to measure permissible lobbying. This
particular election is not available to churches and certain
other religious organizations.
In addition to the tax law, of course, first amendment
considerations affect this analysis, and government may not be
involved in the establishment of religion. The U.S. Supreme
Court has held that tax exemption for public charities is
constitutional, even if exemption is extended to religious
organizations. The Court has also ruled, however, that a tax
exemption that is only for religious organizations is not
constitutionally permissible.
The Supreme Court has further held that Congress has broad
latitude in creating classifications and distinctions in tax
statutes. This principle has been applied in the tax-exempt
organization's context.
Congress has over the years enacted exempt organization
rules uniquely beneficial only to churches and other religious
organizations. Three of these are particularly notable. Mr.
Miller mentioned a couple of these.
Churches and other religious organizations can be tax
exempt without having to file an application for recognition of
exemption with the Internal Revenue Service. Churches and other
religious organizations are not required to file annual
information returns with the Internal Revenue Service. As you
mentioned, churches have been provided special rules by which
audit of them is more difficult for the IRS.
In my view, Congress has the authority under the
Constitution to permit political campaign activity by churches.
I say this as a matter of classification for income tax
exemption. Put another way, if this proposal is
unconstitutional, then so, too, must be the other tax law
benefits Congress has accorded churches.
I would like to make some comments about the pending bills.
The Houses of Worship Political Speech Protection Act would
introduce the standard of substantiality into the political
area. This is the same standard that is used today in the
lobbying context. All of the uncertainties as to what this word
means would be imported into the political area. Pressure would
mount for the equivalent of a section 501 (h) election in this
context.
More importantly, in my view, a new approach to defining
substantiality is required. Traditional definitions in terms of
time or expenditures are no longer working. How does one value
a clergyperson's endorsement of a candidate from the pulpit or
a Web site communication? There may have to be a new
definition, some sort of a facts and circumstances test, to
capture this factor of influence.
Likewise, the Bright-Line Act does not address this
problem. This is because it focuses only on expenditures. An
expenditure for a political act may be minuscule but exert
enormous influence. Also, political activities by volunteers
would be disregarded.
I am also concerned about the section 4955 tax that Mr.
Miller has referenced. The two bills address the matter of
income tax exemption but not the political expenditures tax. If
churches only were exempted from this tax, I believe that would
amount to an unconstitutional sponsorship by the Federal
Government of religion.
Mr. Chairman and Members of the Subcommittee, I would be
pleased to answer any questions that you may have.
[The prepared statement of Mr. Hopkins follows:]
STATEMENT OF BRUCE R. HOPKINS, OF COUNSEL, POLSINELLI, SHALTON & WELTE,
KANSAS CITY, MISSOURI
Mr. Chairman and other Members of the House Subcommittee on
Oversight, thank you for the opportunity to appear before the
Subcommittee today.
Attached is a description of the federal income tax rules
concerning legislative and political campaign activities by churches,
other religious organizations, and public charities (IRC Sec. 501(c)(3)
entities) in general.
I have been asked to review the history of and current requirements
for tax exemption for these organizations.
As to legislative activities:
Public charities can engage in attempts to
influence legislation, without endangering tax-exempt status,
as long as these efforts are not substantial.
The term substantial remains undefined.
There is a safe-harbor exception, which must be
elected, using a mechanical test for measuring allowable
lobbying (IRC Sec. 501(h)).
Churches and other religious organizations may not
make this election.
There are taxes on excess legislative expenditures
(IRC Sec. Sec. 4911, 4912).
As to political campaign activities:
Public charities cannot engage in political
campaign activities.
Some of these activities are considered educational
and thus are permissible.
There is a tax on political campaign expenditures
(IRC Sec. 4955).
Other points:
The federal tax law contains several provisions
creating special advantages and benefits for churches and other
religious organizations.
Tax exemption for all public charities is
constitutional, even though religious organizations are
benefited.
Tax exemption only for religious organizations is
unconstitutional.
The bills that are the subject of this hearing pass
constitutional law muster, unless it is intended that one or
more tax exemptions only for religious organizations are to be
created.
[The attachment is being retained in the Committee files.]
Chairman HOUGHTON. Thank you very much, Mr. Hopkins.
I am going to ask you and also Mr. Miller a question, and
then I will turn this thing over to Mr. Coyne, and we will go
on to the other participants.
What I am really interested in is what is the practical
effect of passage of either the Jones or the Crane bills?
Mr. HOPKINS. Well, the practical impact of passage of the
bill would be basically to engraft into the area of political
campaign activities the type of law that is in the law today
concerning lobbying. In other words, the limitation on a
political campaign activity for churches and other public
charities today is absolute. It is not permissible. In a
lobbying context, there is a standard of insubstantiality. That
standard in the lobbying setting would be imported into the
political arena to allow a certain amount of political activity
by churches.
Chairman HOUGHTON. Is that the practical impact or the
technical impact?
Mr. HOPKINS. Well, maybe I misunderstood what you meant by
the terms. I guess maybe that is more of a technical impact.
I suspect the practical impact would be twofold, if I
understand what you mean by the word ``practical.'' One, as we
know, there are churches engaged in political activity today,
so it would legitimize practices that are going on in any
event. Second, it would probably generate more political
campaign activity by churches than we have today.
Chairman HOUGHTON. Mr. Miller.
Mr. MILLER. I am somewhat limited in what I can say about
the pending legislation, but I would echo Mr. Hopkins--it is
clear there are instances out there of pulpit comments and
things of that nature that would seem to fall within the rules
that are being discussed in the bills.
Chairman HOUGHTON. Well, but this is a hypothetical
situation. It doesn't have anything to do with what Mr. Crane
or Mr. Jones--it is just a hypothetical.
Seriously, what do you think from the standpoint of the IRS
the practical impact of this would be?
Mr. MILLER. Of the bills?
Chairman HOUGHTON. Yes.
Mr. MILLER. The only thing that I would point to in my
testimony is we have outlined what our administrative impact is
in the lobbying area; and because of the rules of section 7611
and the substantiality rules, we have a very limited
enforcement role in lobbying with respect to churches.
Chairman HOUGHTON. All right. Thank you. Mr. Coyne.
Mr. COYNE. Thank you, Mr. Chairman.
Mr. Miller, why is it improper to finance political
campaign activities with tax-deductible charitable donations in
the judgment of the IRS?
Mr. MILLER. On that issue actually I would defer to
Congress. But there is an issue as to why you would be able to
deduct something with a charitable deduction where you were not
allowed otherwise to, so it would create some disparity.
Mr. COYNE. Well, are you saying that you judge it to be or
you rule it to be improper as a result of the actions of
Congress? Is that what you are saying?
Mr. MILLER. In some respects, yes. There is a line of rules
in the Tax Code and in our regulations that talks about the
earmarking of donations. A donation to a charitable
organization that is used or earmarked for political purposes
is not deductible under current law.
Mr. COYNE. Basically, it is the action of Congress that you
respond to. Is that it?
Mr. MILLER. It certainly is.
Mr. COYNE. How many times have you revoked the tax-exempt
status of a church for political activities?
Mr. MILLER. Let me preface my answer. Churches have a
specific status under the Tax Code and a specific definition.
According to our information, we have the exempt revoked status
of two churches. We have revoked religious organizations or
religious-affiliated organizations four or five times in the
last 20 years.
Mr. COYNE. Last 20 years?
Mr. MILLER. It probably goes farther back than that,
since--the first one would be, I guess, Christian Echoes, which
is a 1980 case. So farther back than that.
Mr. COYNE. How many times has the IRS imposed excise taxes
on churches for political activities?
Mr. MILLER. I will go back and check our records on that. I
am personally aware of at least twice that we have done that.
Mr. COYNE. Current law does not require churches to apply
for tax-exempt status nor to file form(s) 990, the annual
information returns, with the IRS. The documents are required
for all other section 501(c)(3) charities and are disclosable
to the public. If the law was changed to allow churches to
engage in political activities, isn't it correct that neither
the IRS nor the public would have any information about the
church's political activity--that is, who funded the political
campaign effort and how much money was spent?
Mr. MILLER. We would have the same information that is
available today, which is we do not have an exemption
application from churches, and they are not required to file
annual returns.
Mr. COYNE. So you would have no information?
Mr. MILLER. We would have limited information.
Mr. COYNE. Wouldn't allowing political activities by
churches create a large campaign finance loophole?
Mr. MILLER. I don't know about a large loophole. It
certainly would create an additional player in the political
arena.
Mr. COYNE. So it would be involving the churches and
religious institutions in the political arena even more so than
they currently are?
Mr. MILLER. Potentially.
Mr. COYNE. Thank you.
Chairman HOUGHTON. Thanks very much. Mr. Crane.
Mr. CRANE. Thank you, Mr. Chairman.
Mr. Miller, is there a statutory or regulatory definition
of the word ``substantial'' as it relates to the amount of
activity a religious organization may engage in?
Mr. MILLER. I don't believe there is a--and Bruce can
correct me if I am wrong on this. I don't believe there is a
statutory rule and probably not in the regulations either.
There are revenue rulings, and there is some case law out
there. Some of these do not involve religious organizations.
Because the substantiality test applies across the board to all
section 501(c)(3) organizations, you can look to those cases as
well. There is some guidance out there.
Mr. CRANE. Well, since this term remains undefined, are
religious organizations simply supposed to wait until some
enforcement action is taken by the IRS to find that line?
Mr. MILLER. Again, if we are talking about lobbying and the
substantiality rules, we have not done a lot of enforcement in
that area. We do not have information that would indicate that
we should be more involved in this area.
Mr. CRANE. Well, could it be that there are so few
enforcement actions that--because churches totally refrain from
political activity because they are afraid of running afoul of
the IRS?
Mr. MILLER. I am not sure how to answer that one.
Again, substantiality applies only in the lobbying context,
and there is an absolute bar in the political context. So the
definition of substantiality would not flow over into political
intervention unless your bill became law.
Mr. CRANE. What is the average cost for defending against
an IRS enforcement action in court?
Mr. MILLER. That I do not have.
Mr. CRANE. Thank you, Mr. Chairman. I yield back.
Chairman HOUGHTON. Thank you. Mr. Lewis.
Mr. LEWIS. Thank you, Mr. Chairman.
Mr. Miller, is it conceivable that, with the campaign
finance reform, that if you change the law, is it conceivable
that the churches could become a conduit, that you would have
individuals making large contributions to churches and then the
churches engage in political activity? Is there some way the
IRS can monitor that?
Mr. MILLER. That is, of course, a possibility. It is a
possibility now as well.
Again, I don't believe the law that is being suggested
would change the fact that earmarking of moneys going into
churches is not deductible or should not be deductible on a
charitable basis. That is existing law, and there has been no
suggestion that this would change. Again, as I have said,
clearly, if the bill is passed, I think that you would have
another player in the political arena that doesn't necessarily
exist today, although to some extent obviously they do.
Mr. LEWIS. Let me come another way. As a rule, do you
monitor the activities of churches during the political season?
Mr. MILLER. We do monitor churches. We are limited in how
we do that by reason of section 7611 and because of the lack of
information in the area because there is no annual filing. So
our monitoring is mostly receipt of information from third
parties who are looking.
Mr. LEWIS. But if you have a minister speaking from the
pulpit on Sunday morning, maybe a rabbi from the synagogue or
the temple, saying that he had been told by God about somebody,
that somebody should be elected, somebody should be defeated,
is that political activity?
Mr. MILLER. That would constitute political activity.
Again, most of these are based on facts and circumstances.
It would be difficult for me to find circumstances in which
that wouldn't be found to be a political campaign intervention.
But, again, whether we would know about that would really
depend on who was in the audience.
Mr. LEWIS. Do you have the ability or the capacity as an
agency to monitor the activities of churches and other
religious institutions?
Mr. MILLER. The only thing we can rely upon, again, is who
would be in that audience to report it, and that presumably
would continue under----
Mr. LEWIS. So you wait for someone to file a complaint
against the institution or against the minister or against the
rabbi or whoever?
Mr. MILLER. Again, as I mentioned, obviously, we do not
have reporting from churches, and under section 7611 we cannot
go out and survey churches. We cannot do audits unless we have
a reasonable belief that there is an exemption or other tax
issue out there. So there are some limitations.
Mr. LEWIS. Thank you, Mr. Chairman.
Chairman HOUGHTON. Let me just ask you a quick question.
Even if you did have reporting for the churches, would you
still be able to determine whether somebody got up at a pulpit
and suggested that a candidate be elected?
Mr. MILLER. In all likelihood, we would not. There is a
question on the form 990 asking whether you engaged in
political activities. Even assuming that they would check that
box, that would obviously not be contemporaneous with the
action.
Chairman HOUGHTON. Thank you. Mr. Weller.
Mr. WELLER. Thank you, Mr. Chairman. First I want to
commend you for conducting this hearing today. I also want to
commend my colleagues, Mr. Jones and Mr. Crane, for their
leadership on this issue.
There are millions of Americans, because of their
involvement and their strong religious faith, for them their
temple, their synagogue, their church, their mosque is their
center of community. They seek the opportunity to be involved,
and they believe through their central community that they
should have the opportunity to be more involved politically.
The question I have and I would like to direct to Mr.
Miller is, just try and get a little more specific here and
follow up on some of the questioning that the Chair and others
have asked here. Mr. Miller, is the IRS--are you proactive in
communicating with churches and other religious organizations
regarding political activity?
Mr. MILLER. We have tried, Congressman, and we will
continue to try. I think we could do a better job.
One thing that we are doing in the coming weeks, we will
reissue our church publication with a little more practical
guidance in this particular area, and we will do additional
outreach, I think.
Mr. WELLER. Do you work with any third party or private
groups to communicate limitations on political involvement in
churches or religious organizations?
Mr. MILLER. We certainly do outreach to whoever comes to
us, and we do have a network of individuals from the religious
community that we talk to.
One person on our advisory Committee is, in fact, a
representative of the religious community. We do have an
outside advisory Committee that speaks to us, and we bounce
things off of and----
Mr. WELLER. Who is that?
Mr. MILLER. That is Deirdre Dessingue of the Catholic
Conference.
Mr. WELLER. Let me ask some specific examples of activity
that may or may not have occurred at churches and temples and
synagogues and mosques, other religious institutions. But under
current law can a church or a synagogue or a temple or a
mosque, can they conduct a voter registration drive sponsored
by the institution or on the institution's property?
Mr. MILLER. Yes. The short answer is, yes, provided they do
not bias their registration activities toward one candidate
over another. There is no prohibition.
Mr. WELLER. And can they offer a candidate debates or
forums, invite candidates to come in and present themselves?
Mr. MILLER. The same general rules would apply.
Mr. WELLER. And what about paid political advertising in a
church bulletin or a publication at the mosque or temple?
Mr. MILLER. There is no prohibition, provided that it is
done on a fair market basis and that it is made available to
whoever wants to use that space. So it has to be equally
available to the candidate base.
Mr. WELLER. And can the minister say the following from the
pulpit and not be in violation of the tax status, that
candidate X is pro-life or candidate Y is pro-choice?
Mr. MILLER. That becomes more problematic, Congressman. The
pastor, the minister, the rabbi can speak to issues of the day,
but to the extent they start tying it to particular candidates
and to a particular election, it begins to look more and more
like either opposition to a particular candidate or favoring a
particular candidate.
Mr. WELLER. And would the Crane and Jones legislation
allow--clarify the law to allow for that type of statement?
Mr. MILLER. I believe so. But Bruce might be able to answer
that better than I.
Mr. WELLER. Mr. Hopkins, can you answer that?
Mr. HOPKINS. Most of the examples that you provided would
not be political activity in the first place, as Steve
indicated, so the legislation would not be needed. But if it
were to go beyond that, say statements made by a Member of the
clergy from the pulpit and they were deemed to be political
statements, which would be prohibited under current law, the
two bills, within certain parameters, would allow that kind of
activity to occur without the church losing its exemption.
Mr. WELLER. So just to follow up on that, say you have a
candidate who is a guest speaker, was in a church speaking from
the pulpit, concludes his or her remarks, and the minister
walks up, puts his or her arm around that particular candidate
and says, this is the right candidate. I urge you to support
this candidate. That would be--is that allowable under current
law?
Mr. HOPKINS. No, that would not be allowable under current
law. That would clearly be political campaign activity. It
would be protected, however, under the two bills that are the
specific subject of the hearing.
But as I said in my opening statement, the problem is in
terms of computing how you stay within the boundaries, either
of the 5 percent rule under one bill or the insubstantiality
test under the other bill. That is, what monetary value do you
assign to that kind of activity?
Mr. WELLER. Just a last question. You know, also on
Election Day sometimes it is alleged that churches or
synagogues, temples or mosques may use what we call the church
bus to transport voters to the polls. Is that allowable under
current law?
Mr. MILLER. That is. It is allowable, again, with the
restriction that they cannot bias toward one candidate versus
another, but get out the vote is a permissible activity of
churches.
Mr. WELLER. Okay. Thank you, Mr. Chairman. I see my time is
expired. Thank you.
Chairman HOUGHTON. Thank you, Mr. Weller. Mrs. Thurman?
Mrs. THURMAN. Thank you, Mr. Chairman.
In the same idea, what about handing out voting guides? Is
that considered to be a political activity, and--either in the
church or is it different if it is outside of the church?
Mr. MILLER. The voter guide issue is one that we are
presented with often. There is nothing per se wrong with
voter's guides if they are done in a way that includes all
candidates in a fair and impartial manner, and, includes a wide
array of issues.
Mrs. THURMAN. One other question, and I--or a couple of
other questions. It is my understanding that today under the
churches and being organized under a section 501(c)(3), they
cannot do any kind of political issue campaigning. Is that
correct?
Mr. MILLER. They cannot do specific advocacy of a
particular candidate or advocating the defeat of another
candidate.
Mrs. THURMAN. Okay. Is there--and it is my understanding
there is a way for them, in fact, to be involved in political
campaigns by setting up a section 501(c)(4), is that correct?
Mr. MILLER. They can have affiliated organizations,
provided that the resources of the church don't find their way
there and are not used for improper purposes. We do see the
ability--and perhaps, Bruce, you want to speak to this as
well--of an organization creating a section 501(c)(4). Again,
any section 501(c)(3) organization, could create a section
501(c)(4) organization. For that matter, a political action
Committee could be attached to that section 501(c)(4)
organization.
Mrs. THURMAN. So they are not then being--I mean, they have
an ability to do that if they choose. Are their churches,
synagogues, mosques, others that do that today?
Mr. MILLER. I am not familiar with any, but I am not sure I
would be.
Mrs. THURMAN. Mr. Hopkins.
Mr. HOPKINS. Well, first of all, let me say, as to your
first question, the problem--and Steve indicated this--is not
just a matter of setting up a related entity. It is a question
of getting it funded, and that often is a problem. Because, as
he said, the church resources can't flow over to the section
501(c)(4). So the section 501(c)(4) has got to find independent
funding, and often that is difficult because contributions to
them are not deductible. But, aside from that, it is not, in my
experience, terribly common for a church to have a related
section 501(c)(4). It is far more common for other types of
religious organizations to do that. I have seen churches do it,
but, in my experience, it is quite uncommon and in large part
because of this funding aspect.
Mrs. THURMAN. I guess my point is that there is a legal way
for them to be involved in the political activities if they
choose to do that.
Aside from their--you know, issue that you bring up as
funding, if a church and its parishioners wanted to be involved
and used that church and/or--for the ability to persuade their
congregation, they have an ability to do that?
Mr. HOPKINS. That is true, although I would point out that
while social welfare organizations--these are section
501(c)(4)s--are not limited as to lobbying, they are limited as
to political campaign activity. They can only expend an
insubstantial part of their funding on political campaign
activities. So that outlet is of limited utility in the
political campaign activity context.
Mrs. THURMAN. But you bring up a good point, because that
means that there is a lot of these organizations out there
other than just in the religious area that would have the same
restrictions unless they did some very similar things that--and
I don't know if in this piece of legislation are those also
being considered, or is it just religious organizations? I
mean, do we say to one, you have a freedom, but the others you
don't unless you abide by the rules that are already set in
place?
Mr. HOPKINS. Well, it is very common to have the section
501(c)(3), section 501(c)(4) in-tandem relationship across the
public charities spectrum, very common. I confess to having set
those up many times over the course of my practice.
Mrs. THURMAN. But didn't you just say they were limited in
what they could do?
Mr. HOPKINS. As far as political activity.
Mrs. THURMAN. Even the section 501(c)(4)----
Mr. HOPKINS. But they are unlimited as to lobbying
activity.
Mr. COYNE. Would the gentlewoman yield?
Mrs. THURMAN. I would yield to Mr. Coyne.
Mr. COYNE. Just to follow up on Mrs. Thurman's question as
about the section 501(c)(4) and section 501(c)(3), it is your
experience that people are willing to contribute to the church
under the section 501(c)(3), but they are not willing--not very
willing, anyway, to take up the section 501(c)(4) option? Is
that it? Is that your experience?
Mr. HOPKINS. Are you speaking to me?
Mr. COYNE. Yes.
Mr. HOPKINS. Yes, it is. Donors are reluctant to donate if
they do not receive a charitable contribution deduction. It
does occur, but it is uncommon.
Mr. COYNE. Thank you.
Chairman HOUGHTON. Mr. Foley.
Mr. FOLEY. Thank you very much, Mr. Chairman; and let me
join Mr. Weller in commending our colleagues, Mr. Jones and Mr.
Crane, and such stalwarts as Lee Sheldon for their leadership
in this issue. This has been a very complicated issue, and I
think one that desperately needs clarity.
It is interesting, in the schools, you can't have a Bible
study, but you can have any number of other groups. In the
churches, you can invite a candidate. A preacher may be able to
invoke that that particular person, be it the President of the
United States, is a phenomenal leader and deserves to return to
office. Yet a small church who may not be able to accord the
arrival or the visit of a President has a small-town local
elected official, and somehow they are in jeopardy of losing
tax status or, in fact, could be crippled, if you will, by the
IRS.
Mr. Miller, you suggested, which is interesting, that this
was a recent area that the Christian Coalition found themselves
in on voter's guides. And the voter's guides you suggested
would be okay if they provide a wide-array discussion. So, if
you could, could you define for me what a wide array would be
considered? Is it 10 issues, 20 issues, five candidates?
Mr. MILLER. Mr. Foley, I apologize, but we are in
litigation with the Christian Coalition over that very issue,
and I don't think I am authorized to speak in great detail on
that one.
Mr. FOLEY. Okay. Hence the confusion. Okay.
The other question I have, while I enjoy both of these
bills and I think they would bring some clarity, my concern
always is, when government gets more meddlesome and more
involved by staking out percentages or other issues, will the
IRS need the churches to maintain more detailed records such as
direct expenses, logs or tapes of political campaigns, time
sheets, overhead and administrative allocation? Would these
bills actually invite more government and IRS interference?
Mr. MILLER. Once again, I would point to our experience in
the lobbying area. Again, because of section 7611, our
involvement would be limited because we need a reasonable
belief that exemption is an issue. And if you have the typical
example of a pulpit pronouncement, that generally might not be
sufficient to initiate a church inquiry under section 7611. If
we were auditing the organization, then, yes, it is conceivable
that we would require recordkeeping, as we would with other
section 501(c)(3) organizations.
Mr. FOLEY. I guess the question always for me has been the
churches, synagogues have long been the mainstay of American
society, and many of the works that they pronounce from the
pulpits are works that government is involved in--feeding and
clothing the poor, cleaning up inner-city neighborhoods,
dealing with spousal problems and spousal abuse. It seems to me
if the minister or rabbi wants to continue and make that a
cause for their church to expand those opportunities, engaged
in a dialog with their parishioners whose parishioners attend
voluntarily, if they were to advocate for someone who, in fact,
espoused those same virtues or were at least on the same
thought pattern, it seems that it restricts the churches from a
continuation of their good work, and I guess I don't understand
where the politics comes in.
If--Dr. Kennedy is here from Fort Lauderdale--and I am
delighted he is here--he will preach about the things necessary
to bring a community together, to bring it whole and holistic,
if you will. Yet if he treads slightly over to suggesting that
some of those individuals who may in fact bring those changes
to government, then he could be in serious jeopardy and
conflict with the IRS, which seems to me a difficult standard.
Mr. MILLER. I guess I would respond in a couple of
fashions.
First, I think that there is nothing in the statute that
prevents the clergy from speaking to the issues of the day. It
is when they tie those issues to a particular election campaign
that there is even an issue.
As I mentioned in our testimony, our experience is where
there has been the kind of foot fault that you are speaking of,
we have talked to the church to ensure that they understand
what the rules are. We have not revoked generally. We have
spoken to them about what the rules are and gotten their
agreement that they understand the rules and will establish
some procedures as to how they will operate so that we don't
have to come back and intervene again.
Mr. FOLEY. Thank you. Thank you, Mr. Chairman.
Chairman HOUGHTON. Thank you very much. Unless there are
any other questions, we appreciate very much your being here.
You have helped us a great deal.
Now we will move on to the second panel. What I would like
to do is to call the second panel, Mr. Colby May, Senior
Counsel for the American Center for Law and Justice in
Alexandria, Virginia; the Reverend Dr. C. Welton Gaddy, Ph.D.,
Executive Director of the Interfaith Alliance; the Honorable
Reverend Walter Fauntroy--Walter, great to have you back here--
Pastor of the Bethel Baptist Church; the Reverend Barry Lynn,
Executive Director, Americans United for Separation of Church
and State; Brenda Girton-Mitchell, Associate General Secretary
for Public Policy with the National Council of Churches (NCC).
And Mr. Foley is going to introduce Dr. Kennedy.
Mr. FOLEY. Thank you very much, Mr. Chairman. I want to
thank you again for holding the hearing.
However opinions may vary, this issue is critically
important to the countless religious institutions across our
country, and I appreciate the Chairman's decision to allow us
to consider it.
I also want to--I appreciate all the witnesses for being
here today. In particular, I would like to recognize among our
panelists today Dr. James Kennedy of my home State of Florida.
Dr. Kennedy's Coral Ridge Presbyterian Church is located in
Fort Lauderdale, Florida, near my district and that of the
district of our colleague on the Committee on Ways and Means,
Clay Shaw, and has a Membership of nearly 10,000 Members.
Moreover, his Coral Ridge ministries is a vibrant television,
radio, and print outreach ministry that reaches millions both
here and abroad.
I know the Chairman has an abundance of people who all
wanted to testify here, so I am pleased that Dr. Kennedy was
able to join the panel. We need to look at this issue clearly,
and again I applaud and welcome Dr. Kennedy to our hearing
today.
Chairman HOUGHTON. Thanks very much, Mr. Foley.
Well, ladies and gentlemen, I think we should proceed. Mr.
May, will you take the first cut at this?
STATEMENT OF COLBY M. MAY, DIRECTOR, AMERICAN CENTER FOR LAW &
JUSTICE, ALEXANDRIA, VIRGINIA
Mr. MAY. Thank you, Mr. Chairman. How is this mike working?
Is it okay?
Mr. Chairman and Members of the Subcommittee, thank you for
extending to me the invitation to be here today. I am and was
Legal Counsel for the Church at Pierce Creek in Binghamton, New
York, which in 1992 had its exemption revoked for a single
violation of this portion of the Tax Code.
Until 1954, all houses of worship were afforded the full
and clear opportunity to act and speak as their conscience and
leadership may direct, even in the political area. Today,
houses of worship do not, however, enjoy that freedom because
of the Johnson amendment which was inserted into the Tax Code
in 1954 without a debate or a hearing. Then-Senator Johnson was
angry because two Texas charitable organizations had taken a
position contrary to him during his then-current primary bid.
The law under the Johnson amendment now provides that
churches and exempt organizations may engage in an
insubstantial amount of lobbying activities, as you have heard
from the IRS panel, but they are banned from doing anything
that may be regarded as participating or intervening in a
political campaign. Now the law is so intrusive and
incomprehensible that the IRS has actually taken the position--
and I was curious to note that they did not mention this during
their testimony, but they have taken the position that there is
coded language that may be used which would violate the
political prohibition.
In its publication, Election Year Issues, the IRS explains
that the concerns that an exempt organization may support or
oppose a particular candidate without specifically naming the
candidate by using code words to substitute for the candidate's
name and its message--code words such as conservative or
liberal, pro-life or pro-choice or anti-choice, or even
Republican or Democrat.
Now, making matters worse, the IRS doesn't know whether the
intent behind the message matters. Did the organization intend
to actually endorse or not?
Adding further inscrutability, the IRS has also said the
same message can be both permissible for an exempt organization
to make if it is an educational or religious message, but it
may nevertheless violate the political intervention ban.
Now, what a Catch-22. Code language violates the ban, but
maybe it doesn't. Intent matters, but it doesn't. And the same
message is okay, but it isn't.
Now, those opposing the bill have insisted that replacing
the absolute ban on political intervention with the no
substantial part test currently used in the lobbying context
would create a loophole in the Nation's campaign finance
system. Such an assertion, however, is unfounded. Under the new
bipartisan Campaign Finance Reform Act of 2002 which amends the
Nation's Federal election campaign laws, all corporations, and
including tax-exempt nonprofit corporations, are barred from
making hard money contributions or any direct or indirect
disbursements for electioneering communications.
In the Act, the phrase ``electioneering communications''
means any communication by means of any broadcast, cable or
satellite communication, newspaper or magazine, outdoor
advertising facility, mass mailing, telephone banks to the
general public or any other form of general public policy
advertising. These restrictions apply right now and will
continue to apply regardless of any changes that you may make
to the Tax Code with passage of either of the bills that are
before you today.
Since the beginning of the Tax Code, churches and houses of
worship have been exempt from income taxes because they provide
services and promote the general welfare, saving those costs to
the government. That fundamental relationship will not change
if you abandon the absolute political intervention ban and
replace it with a no substantial part test as you currently
have in the lobbying area.
The passage of H.R. 2357, for example, the House of Worship
Political Free Speech Act, will not require houses of worship
to affirmatively do anything or fundamentally change their
functions. Houses of worship will continue to serve the basic
needs of their congregations and their local communities,
preserving the historic balance between church and State and
fulfilling the purpose for tax exemption, even if they
incidentally or occasionally speak out concerning candidates
and issues.
Now, you have heard also from the IRS panel that they
believe it is constitutional because there isn't a great
disparity in its application between groups of exempt
organizations.
I would just note that in the 1983 Supreme Court decision
of Reagan versus Taxation With Representation, the courts
upheld Congress's constitutional powers to treat different
speakers differently in the context of the Tax Code. In the
Reagan case, the lobbying limits for exempt organizations are
upheld against a constitutional challenge as to the lobbying
limits, even though there were different standards for
different types of exempt organizations.
Now, I conclude my introductory remarks by simply noting
that, whatever this standard is, it certainly isn't applied in
a very consistent or even-handed manner. I hold up for the
Subcommittee's consideration a recent front page from the
Montgomery Advertiser in Montgomery, Alabama, noting that a
Democratic senatorial candidate has put on his staff a clergy
coordinator for the sole and exclusive purpose to make sure he
gets around to all the churches in the area to receive the
appropriate endorsements.
Now, Members of the Subcommittee, I think that is okay. I
frankly believe it should be appropriate for churches to be
able to take a stand. I believe when Reverend Walter Fauntroy
speaks, he will also speak to that issue from his life's
experience in this matter.
I end with the irony that if this were 1953, we would not
need this hearing, because churches were able to do this
without concern or fear that the Federal Government was going
to come and revoke their tax exemption. Can you imagine if you
are the pastor of a church where your whole mission is to serve
the needy, feed the hungry, and take care of the widows and
children? Well, if you think there is any ambiguity and
confusion in this area, I don't believe for 1 minute you would
speak out on an issue that you may otherwise believe is
important for your congregation to hear about. Why? Because
your real primary mission will be shut down by the IRS, because
they do not know exactly what it means to violate the absolute
ban on political speech. They will take you out of business.
Take it from me. I represented the Church at Pierce Creek, and
they lost their tax exemption.
If there are any questions, I would be glad to talk about
them later.
Chairman HOUGHTON. Thanks very much, Mr. May.
[The prepared statement of Mr. May follows:]
STATEMENT OF COLBY M. MAY, DIRECTOR, AMERICAN CENTER FOR LAW & JUSTICE,
ALEXANDRIA, VIRGINIA
Mr. Chairman and members of the Subcommittee on Oversight, thank
you for extending the invitation to appear before the Subcommittee to
testify in support of H.R. 2357, the ``Houses of Worship Political
Speech Protection Act,'' a measure designed to advance free speech and
to curb the unbridled discretion of the IRS.
I respectfully request that the entirety of my prepared statement
be made a part of the record of today's hearing. The following is an
overview of my testimony:
I. OVERVIEW
First, replacing the absolute ban on political intervention with the
``no substantial part of the activities'' test currently used in the
lobbying context would not create a loophole in the nation's campaign
finance system.
Some critics contend that HR 2357 would open a loophole in the
nation's campaign finance system. Such criticism, however, is unfounded
since all corporations, including tax-exempt nonprofit corporations,
are barred from making ``hard money'' contributions, or any direct or
indirect disbursements for ``electioneering communications'' under the
new Bipartisan Campaign Finance Reform Act of 2002, which amends the
Federal Election Campaign Act, 2 U.S.C. Sec. 431, et seq. The phrase
``electioneering communications'' boils down to a communication by
``means of any broadcast, cable, or satellite communication, newspaper,
magazine, outdoor advertising facility, mass mailing, or telephone bank
to the general public, or any other form of general public political
advertising.'' BCFRA Sec. Sec. 101(a); 102(b); FECA Sec. Sec. 431(22);
441b(b)(2). These restrictions apply right now, and will continue to
apply regardless of any changes to the tax code which may be made by
the passage of the ``Houses of Worship Political Speech Protection
Act.''
Second, because there is no clarity on what is a violation of the
political intervention ban, having an absolute, one-strike-your-out ban
is inherently unjust and unworkable.
The IRS has taken the position that ``coded language'' violates the
political prohibition. TAM 9117001. In the publication ``Election Year
Issues,'' it explains that ``[t]he concern is that [an exempt]
organization may support or oppose a particular candidate without
specifically naming the candidate by using code words to substitute for
the candidates name in its message, such as ``conservative,''
``liberal,'' ``pro-life,'' ``pro-choice,'' ``anti-choice,''
``Republican,'' or ``Democrat,'' etc. . . .'' Exempt Organizations
Continuing Education Technical Instruction Program for FY 2002 at 345
(``2002 CETIP''). In a footnote following the text, the IRS notes that
it is the ``intent'' of the party making the communication which will
determine whether these ``coded words'' are to be treated as violations
of the political campaign intervention ban:
``[a] finding of political campaign intervention from the use
of coded words is consistent with the word ``candidate''--the
words are not tantamount to advocating support for or
opposition to an entire political party, such as
``Republican,'' or a vague and unidentifiable group of
candidates, such as ``conservative'' because the sender of the
message does not intend the recipient to interpret them that
way. Coded words, in this context, are used with the intent of
conjuring favorable or unfavorable images--they have pejorative
or commendatory connotations. [So,] the voter in Vermont,
hearing an exhortation regarding ``liberal'' candidates, may
not know who fits that label in Kansas, but presumably he knows
who stands for what in Vermont, which is why the coded word is
used in the first place.'' id. at 345, n. 10 (underlining
added).
As if just dealing with the uncertainty of losing one's tax
exemption because ``code words'' were used wasn't bad enough, the
problem is compounded because the IRS here says ``intent'' is
determinative. That position, however, directly contradicts previous
statements by the IRS that ``intent'' or ``purpose'' is irrelevant in
determining whether the political campaign ban has been violated. In
its 1993 version of ``Election Year Issues'' the IRS stated ``the
motivation of an organization is irrelevant when determining whether
the political campaign prohibition has been violated.'' 1993 CETIP at
414-15. Then, as if this inconsistency over ``intent'' was not enough
confusion on the matter, in its 2002 version the IRS stated:
``Therefore, the resolution of the `bad motive' issue depends
upon the way the activity is conducted (the facts and
circumstances) [--intent doesn't matter--] and upon any [sic]
inquiry into the state of mind of the organization [--intent
matters].''
2002 CETIP at 351. The only thing that is clear is that the IRS
wants the unrestricted discretion to decide it either way. Because a
single violation of the political intervention ban requires revocation
of exemption, due process and fairness require replacement of the
absolute ban with the ``no substantial part'' standard.(1)
---------------------------------------------------------------------------
\(1)\ The courts have repeatedly held that when a regulatory agency
has conflicting interpretations or applications of its rules and
regulations, due process is violated because no clear or fair notice of
what is required for compliance has been given. Satellite Broadcasting
Co., Inc. v. FCC, 262 U.S. App. D.C. 274, 824 F.2d 1 (D.C. Cir. 1987);
General Elec. Co. v. EPA, 311 U.S. App. D.C. 360, 53 F.3d 1324, 1327
(D.C. Cir. 1995); United States v. Chrysler Corp., 332 U.S. App. D.C.
444, 158 F.3d 1350, 1354-57 (D.C. Cir. 1998) (holding that agency
failed to provide fair notice of specific requirements of compliance
and therefore could not move to enforce its regulations); Rollins
Envtl. Svcs. (NJ) Inc. v. EPA, 290 U.S. App. D.C. 331, 937 F.2d 649,
653 (D.C. Cir. 1991) (rescinding fine assessed by EPA because
regulation was ambiguous); Gates & Fox Co., Inc. v. OSHRC, 252 U.S.
App. D.C. 332, 790 F.2d 154, 156 (D.C. Cir. 1986) (holding that agency
failure to give fair notice of its interpretation of its regulations
precluded enforcement); Trinity Broadcasting of Florida, Inc., et al.
v. FCC, 211 F3d 618, 2000 U.S. App. LEXIS 8918 (D.C. Cir. 2000) (same).
Third, since the beginning of the tax code churches and houses of
worship have been exempt from income taxes because they provide
services and promote the general welfare, saving the government the
costs of having to do so. That fundamental relationship will not be
changed by abandoning the absolute political intervention ban and
---------------------------------------------------------------------------
replacing it with the ``no substantial part'' test.
Following passage of the Sixteenth Amendment allowing the federal
government to directly tax personal income, churches and houses of
worship have been exempt from income taxes. Tariff Act of 1913.
Congress has always recognized that they are tax-exempt because ``the
government is compensated for the loss of revenue by its relief from
financial burden which would otherwise have to be met by appropriations
from public funds, and by the benefits resulting from the promotion of
the general welfare.'' The occasional or incidental, intentional or
unintentional, participation by a church, synagogue or mosque in
activities that may be regarded as political campaign involvement will
not change this relationship. Passage of HR 2357 will not require
houses of worship to affirmatively do anything, or fundamentally change
their functions. Houses of worship will continue to serve the basic
needs of their congregations and their local communities, preserving
the historic balance between church and state, and fulfilling the
purpose for tax-exemption.
Fourth, given the vague and contradictory positions of the IRS that the
same activity can be both permissible for an exempt organization and
still violate the political intervention ban, modification of the
absolute ban is necessary.
The ``Houses of Worship Political Speech Protection Act'' will both
alleviate and obviate the confusion and fear surrounding the
requirements for compliance with the political intervention ban. In
``Election Year Issues,'' the tome relied upon by most practitioners in
this area as an indicator of the IRS's approach to political campaign
activities by exempt organizations, the IRS has taken the view that
educational or religious activities which otherwise qualify as exempt
activities can nevertheless constitute prohibited political activity:
``The most common question that arises in determining whether
an IRC 501(c)(3) organization has violated the political
campaign intervention prohibition is whether the activities
constitute political intervention or whether they are
educational [or religious], purposes for which an IRC 501(c)(3)
organization may be formed . . . Sometimes, however, the answer
is that the activity is both--it is educational [or religious],
but it also constitutes intervention in a political campaign.''
2002 CETIP at 349. In a 1989 ruling the Service stated that
``[e]ducating the public is not inherently inconsistent with the
activity of impermissibly intervening in a political campaign.'' TAM
8936002. Then in a 1999 Tax Advice Memorandum, 199907021, the IRS went
on to say ``[e]ven if the organization's advocacy is educational, the
organization must still meet all other requirements for exemption. .
.''. In short, the IRS says you can do it, but you can't. The ``Houses
of Worship Political Speech Protection Act'' will alleviate the deep
chill caused by such IRS double speak since whatever the IRS standard
is, a one time step over the line would not result in revocation.
Fifth, modifying the political intervention ban applicable to houses of
worship to conform with the ``no substantial part'' test currently
applicable for lobbying activities passes constitutional muster.
In analyzing the constitutionality of a Congressional enactment in
the Establishment Clause area, the courts continue to use the three
part test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). See
Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993)
(noting that despite heavy criticism of the Lemon test, Lemon has not
been overruled). See also Jager v. Douglas County Sch. Dist., 862 F.2d
824, 828-29 (11th Cir.), cert. denied, 490 U.S. 1090 (1989) (discussing
appropriateness of using Lemon test).
Under the Lemon test, ``first, the statute must have a secular
legislative purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion. . . ; finally, the
statute must not foster 'an excessive government entanglement with
religion.''' Lemon, 403 U.S. at 612-13 (citations omitted). Allowing
Congress to determine the application and reach of the tax code
fulfills the ``secular purpose'' element of the Lemon test since only
Congress has power under Article I of the constitution to make and levy
taxes. As upheld in Regan v. Taxation With Representation, 461 U.S.
540, 544 (1983), Congress may constitutionally permit certain speakers
to be treated differently than others in the context of the tax
statute. In Reagan the lobbying limits for exempt organizations were
upheld against a constitutional challenge even though different tax-
exempt organizations were not subject to the same limitations. As
stated in Rosenberger v. Rector and Visitors of Univ. Of Va., 515 U.S.
819, 825 (1995):
Regan relied on a distinction based on preferential treatment
of certain speakers--veterans organizations--and not a
distinction based on the content or messages of those groups.
Accordingly, allowing Congress to determine the application of the
tax code does not violate the secular purpose of the legislation.
Under the second prong of the Lemon test, legislation will only
violate the Establishment Clause if its primary effect is to advance or
inhibit religion. The effects prong of the Lemon test ``'asks whether,
irrespective of [the] government's actual purpose, the practice under
review in fact conveys a message of endorsement or disapproval''' of
religion. Wallace v. Jaffree, 472 U.S. 38, 56 n.42 (quoting Lynch v.
Donnelly, 465 U.S. at 690 (O'Connor, J., concurring)). Modifying the
absolute ban on political intervention to conform to the
``insubstantiality'' test now used in the lobbying test conveys no such
endorsement.
Moreover, HR-2357 avoids the excessive entanglement of the
government with religious institutions, in conformance with the third
Lemon requirement ``The First Amendment does not prohibit practices
which by any realistic measure create none of the dangers which it is
designed to prevent and which do not so directly or substantially
involve the state in religious exercises or in the favoring of religion
as to have meaningful and practical impact.'' Lee v. Weisman, 505 U.S.
577, 598 (quoting Schempp, 374 U.S. at 308 (Goldberg, J., concurring)).
In addition, the U.S. Supreme Court has previously upheld the tax
exemption for all religious organizations as required in order to avoid
the excessive entanglement of the government in to the affairs of the
church. Walz v. Tax Commission, 397 U.S. 664, 671 (1970).(2)
It is for all these reasons that ``The Houses of Worship Political
Speech Protection Act'' is constitutional, and a legally appropriate
act for Members of Congress to support.
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\(2)\ The concern over entanglement is also why churches and houses
of worship, pursuant to IRC 6033(a)(2), need not file annual
informational tax returns (IRS Form 990), while all other exempt
organizations must.
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II. CURRENT LAW
The phrase ``no substantial part of the activities'' is found in
the current version of the Internal Revenue Code, section 501(c)(3),
and it relates to the limit of how much ``lobbying,'' or legislative
activity a church or exempt organization may conduct. The Houses of
Worship Political Speech Protection Act (HR-2357) uses that same phrase
to loosen the absolute ban now applying to any ``political activity''
(speech or association) by a house of worship.(3)
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\(3)\ Section 501(c)(3) of the Internal Revenue Code has been
interpreted by courts to prevent even a single activity which might be
regarded as Aparticipating in, or intervening in@ a political campaign
on behalf of or in opposition to a candidate for public office.
Association of the Bar of the City of New York v. Commissioner, 858
F.2d 876 (2nd Cir, 1988); Branch Ministries v. Rossotti, 40
F. Supp. 2d 15 (D.D.C. 1999); aff'd, 211 F.3d 1137 (D.C. Cir. 2000).
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As a rough rule-of-thumb, the phrase ``no substantial part of the
activities'' has generally come to mean no more than five percent (5%)
of an organization's overall expenditures of time, money and personnel.
The five percent (5%) limit also follows the objective expenditure
allowances (but a much lower rate) permitted for tax-exempt
organizations, but not churches or houses of worship, in IRC 501(h),
the so-called safe-harbor for lobbying activities.
The ``Houses of Worship Political Speech Protection Act''
recognizes that no house of worship should be penalized for an
occasional or inadvertent statement or action that may be regarded as
``political intervention.''
III. THE NEED FOR THE HOUSES OF WORSHIP POLITICAL SPEECH PROTECTION ACT
Congressional hearings over the last few years have served to
highlight the abuses of the IRS in the name of tax code enforcement. In
addition, the IRS has conducted tax or compliance audits of ``the
Heritage Foundation, Citizens for a Sound Economy, the Christian
Coalition, The National Rifle Association, Freedom Alliance, the
Western Journalism Center, the National Center for Public Policy, and
National Review.'' The Washington Times (January 8, 1998 at A.7). These
and other conservative organizations have been audited as well, while
their counterparts in the liberal establishment have gone unscathed.
This type of selective federal investigation and enforcement
highlights the need for regulatory reform and deregulation. The point
is that no church or house of worship should be penalized for simply
speaking out on the issues, candidates, or public leaders, occasionally
or inadvertently engaging in activity that may be regarded as
political, or accurately providing the voting records and issue stances
of elected officials and candidates. Federal agencies such as the IRS
cannot become so highly politicized that they become federal arbiters
of political thought and permissible speech. The current federal tax
code allows the IRS the unbridled leeway and discretion to conduct such
politically motivated audits under the guise of regulatory enforcement,
and it is using this unbridled discretion in a partisan and selective
fashion.
To reign in the IRS's unbridled discretion and bring balance and
fairness back to the system the time has come to change the ``Johnson
Amendment.'' This amendment was highly partisan and political and was
specifically designed in 1954 by then Senator Lyndon Johnson to ``deny
tax-exempt status to not only those people who influence legislation
but also those who intervene in any political campaign on behalf of any
candidate for any political office.''(4) Senator Johnson was
angry that two non-profit Texas groups had supported his primary
opponent, so he rammed his amendment through the Congress as a floor
amendment without any benefit of a congressional hearing or
debate.(5)
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\(4)\ 100 Cong. Rec. 9604 (1954).
\(5)\ See, Hopkins, The Law of Tax-Exempt Organizations at 327 (6th
ed. 1992)(herein ``Hopkins'').
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The rule has become so intrusive, and so significant a threat to
the First Amendment rights of all churches, synagogues, mosques and
houses of worship, that total removal of tax exemption can be imposed
if a candidate for office addressing a religious body is favorably
introduced, or is supported from the pulpit. Under the law as written,
a one hour political strategy meeting held on the premises of a church
or charity, without paying a market rental, could trigger the complete
destruction of the institution by the IRS. A priest who speaks on the
moral issues of abortion or capital punishment during a campaign season
runs the risk of triggering an IRS investigation or violating the
``coded words'' restriction. As written, the rule of '501(c)(3) is akin
to a highway in which traffic to 65 mph is permissible, but if a
motorist goes even 1 mph over the speed limit, the police can arrest
the motorist who would then be subject to the death penalty; and absurd
situation. This is not only manifestly unfair, but an intolerable
infringement by the IRS of the fundamental rights of free speech, and
the free exercise of religion. It also intrusively entangles the
government in religious matters.
The solution is simple. Under current tax law, tax exempt
organizations may carry on lobbying if their efforts constitute ``no
substantial'' amount of their activities. IRC 501(c)(3). While the term
``substantial'' is not defined for those entities not making the safe-
harbor election permitted under IRC 501(h), such as
churches,(6) for over 40 years courts have generally
determined that if no more than five percent (5%) of the time and
effort of the organization is devoted to lobbying, the lobbying was not
``substantial.'' See, Seasongood v. Commissioner, 227 F.2d 907, 912
(6th Cir. 1955); World Family Corp. v. Commissioner, 81 T.C. 958
(1983)(exempt organization's lobbying activities which were less than
ten percent (10%)--but more than 5%--of its total efforts was
``insubstantial.'' Indeed, Marcus Owen, the former head of Exempt
Organizations for the IRS, has been quoted as saying that ``the law in
this area needs to be clarified since anything from five percent to
fifteen percent of total expenditures has been permitted for
[l]egislative activity.'' Washington Times, December 2, 1997, p. A5.
From this line of cases, and comments, it appears that as long as an
organization expends only five percent (5%) or so of its overall
expenditures on legislative activity such activity will be regarded as
``insubstantial'' and not result in a loss of exemption. Adopting a
similar standard for political activity, and amending IRC '501(c)(3) as
proposed in the House of Worship Political Speech Protection Act, does
precisely that.
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\(6)\ Churches are not permitted to make the election for lobbying
activities pursuant to IRC '501(h)(5). This exclusion means that the
lobbying activities of churches is governed by the'' substantial part
test,'' which is a facts and circumstances evaluation. IRS Reg.
'1(a)(4); Kentucky Bar Foundation, Inc. v. Comm'r, 78 T.C. 971
(1982)(the issue of ``[]substantial[ity]'' is a question of facts and
circumstances). Moreover, for the same reason that churches need not
file an annual tax return (IRC '6033(a)(2))--to avoid government
entanglement--so too churches may not make the IRC '501(h) election.
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IV. TAX EXEMPTION IS LINKED TO SOCIAL POLICY, WHICH LEADS TO THE
INEVITABLE RESULT OF REVOCATION OF TAX EXEMPTION FOR RELIGIOUS
INSTITUTIONS AND RELIGIOUS ORGANIZATIONS
Ever increasing inroads have been made into the tax exempt status
of religious organizations and churches. Both the IRS and atheist
groups have been seeking the revocation of tax exempt status for
religious institutions for some time. See, e.g., Walz v. Tax
Commission, 397 U.S. 664 (1969). Religious institutional doctrine has
historically been at odds with social mores which are in vogue. To
condition tax exemption on a religious institution's willingness to
conform to fashionable ideals (e.g., ordination of homosexuals, same
sex marriages) unavoidably leads to the demise of tax exemption for
houses of worship. To avoid this egregious result, it is necessary to
modify the tax code, and allow a wider berth for houses of worship to
generally engage in political speech.
The Threat to Free Speech and Free Exercise is Real Since the IRS
Sanctions for Using ``Coded Language'' and is Contradictory on Whether
``Intent'' Is Relevant
The Service has taken the position that ``coded language'' violates
the political prohibition. 2002 CETIP at 344-45. It explains that
``[t]he concern is that [an exempt] organization may support or oppose
a particular candidate without specifically naming the candidate by
using code words to substitute for the candidates name in its message,
such as ``conservative,'' ``liberal,'' ``pro-life,'' ``pro-choice,''
``anti-choice,'' ``Republican,'' or ``Democrat,'' etc. . . .'' 2002
CETIP at 345. Then in a footnote, it contradicts its admonition not to
use these very ``coded words'' and states that:
``[a] finding of political campaign intervention from the use
of coded words is consistent with the word ``candidate''--the
words are not tantamount to advocating support for or
opposition to an entire political party, such as
``Republican,'' or a vague and unidentifiable group of
candidates, such as ``conservative'' because the sender of the
message does not intend the recipient to interpret them that
way. Coded words, in this context, are used with the intent of
conjuring favorable or unfavorable images--they have pejorative
or commendatory connotations. [So,] the voter in Vermont,
hearing an exhortation regarding ``liberal'' candidates, may
not know who fits that label in Kansas, but presumably he knows
who stands for what in Vermont, which is why the coded word is
used in the first place.'' id. at 345, n. 10 (underlining
added).
The confusion and fear surrounding the requirements for compliance
with the political intervention ban in section 501(c)(3) are quite
real. One need look no further than the guidance pronouncements of the
IRS and others in this area. For example, in ``Election Year Issues,''
(7) the tome relied upon by most practitioners in this area
as an indicator of the Service's approach to political campaign
activities by exempt organizations, the Service has taken the view that
educational or religious activities which otherwise qualify as exempt
activities can nevertheless constitute prohibited political activity:
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\(7)\ Judith Kindell and John F. Reilly, ``Election Year Issues,''
Exempt Organizations Continuing Education Technical Instruction
Program, www.irs.gov (``2002 CETIP Text'').
``The most common question that arises in determining whether
an IRC 501(c)(3) organization has violated the political
campaign intervention prohibition is whether the activities
constitute political intervention or whether they are
educational [or religious], purposes for which an IRC 501(c)(3)
organization may be formed . . . Sometimes, however, the answer
is that the activity is both--it is educational [or religious],
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but it also constitutes intervention in a political campaign.''
2002 CETIP at 349. In a 1989 ruling the Service stated that
``[e]ducating the public is not inherently inconsistent with the
activity of impermissibly intervening in a political campaign.'' TAM
8936002. Then in a 1999 Tax Advice Memorandum, 199907021, the IRS went
on to say ``[e]ven if the organization's advocacy is educational, the
organization must still meet all other requirements for exemption. .
.''. So, the IRS says you can do it, but you can't.
There is also considerable uncertainty over whether one's
``intent'' or ``purpose'' in making the communication matters. In its
1993 version of ``Election Year Issues'' the IRS stated ``the
motivation of an organization is irrelevant when determining whether
the political campaign prohibition has been violated.'' 1993 CETIP at
414-15. However, in its 2002 version the IRS, discussing the debate its
1993 statement generated, stated:
``Therefore, the resolution of the 'bad motive' issue depends
upon the way the activity is conducted (the facts and
circumstances) and upon any [sic] inquiry into the state of
mind of the organization.''
2002 CETIP at 351. It's clear, the IRS cares about motive or purpose,
but then again it doesn't.(8)
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\(8)\ The courts have repeatedly held that when a regulatory agency
has conflicting interpretations or applications of its rules and
regulations, due process is violated because no clear or fair notice of
what is required for compliance has been given. Satellite Broadcasting
Co., Inc. v. FCC, 262 U.S. App. D.C. 274, 824 F.2d 1 (D.C. Cir. 1987);
General Elec. Co. v. EPA, 311 U.S. App. D.C. 360, 53 F.3d 1324, 1327
(D.C. Cir. 1995); United States v. Chrysler Corp., 332 U.S. App. D.C.
444, 158 F.3d 1350, 1354-57 (D.C. Cir. 1998) (holding that agency
failed to provide fair notice of specific requirements of compliance
and therefore could not move to enforce its regulations); Rollins
Envtl. Svcs. (NJ) Inc. v. EPA, 290 U.S. App. D.C. 331, 937 F.2d 649,
653 (D.C. Cir. 1991) (rescinding fine assessed by EPA because
regulation was ambiguous); Gates & Fox Co., Inc. v. OSHRC, 252 U.S.
App. D.C. 332, 790 F.2d 154, 156 (D.C. Cir. 1986) (holding that agency
failure to give fair notice of its interpretation of its regulations
precluded enforcement); Trinity Broadcasting of Florida, Inc., et al.
v. FCC, 211 F3d 618, 2000 U.S. App. LEXIS 8918 (D.C. Cir. 2000) (same).
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V. THE ORIGINAL PURPOSE OF IRC 501(C)(3) WAS TO PREVENT POLITICAL
ACTIVISM OF NON-PROFIT GROUPS IN TEXAS DURING THE 1954 SENATORIAL
CAMPAIGN OF L.B.J.
Tax exemption under IRC 501(c)(3) requires four basic
criteria.(9) The chief prohibition amongst these is that
nonprofit organizations, including houses of worship, must ``not
participate in, or intervene in'' political campaigns. IRC '501(c)(3).
As noted above, this provision was added to the federal tax law in
1954, without benefit of congressional hearings, in the form of a floor
amendment in the Senate, 100 Cong. Rec.9604 (1954). During
consideration of the legislation that was to become the Revenue Act of
1954, Senator Lyndon B. Johnson of Texas forced the amendment out of
his anger that local two Texas non-profit groups had supported his
primary opponent. Hopkins, ``The Law of Tax-Exempt Organizations,'' 327
(6th ed. 1992) (hereinafter ``Hopkins'').
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\(9)\ That is, organizations described in IRC 170(c)(2)(B),
501(c)(3), 2055(a)(2), 2106(a)(2)(A)(ii) & (iii), and 2522(a)(2) and
(b)(2).
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The tax exemptions contained in IRC 501(c)(3) originated as a part
of the Tariff Act of 1894. The provision stated that ``nothing herein
contained shall apply to. . . corporations, companies, or associations
organized and conducted solely for charitable, religious, or
educational purposes'' (ie., houses of worship) After ratification of
the Sixteenth Amendment, Congress enacted the Tariff Act of 1913,
exempting from the federal income tax ``any corporation or association
organized and operated exclusively for religious, charitable,
scientific, or educational purposes, no part of the net income of which
inure to the benefit of any private shareholder or individual.''
In the Revenue Act of 1918, the enumeration of tax-exempt
organizations was expanded to include those organized ``for the
prevention of cruelty to children or animals.'' The Revenue Act of 1921
expanded the statute to exempt ``any community chest, fund, or
foundation'' and added ``literary'' groups to the list of exempt
entities. The Revenue Act of 1924, 1926, 1928, and 1932 did not provide
for any changes in the law of tax-exempt organizations.
The Revenue Act of 1934 carried forward the exemption requirements
as stated in the prior revenue measures and added the rule that ``no
substantial part'' of the activities of an exempt organization can
involve the carrying on of ``propaganda'' or ``attempting to influence
legislation.'' The Revenue Acts of 1936 and 1938 brought forward these
same rules, as did the Internal Revenue Code of 1939. The current IRC
'501(c)(3) language follows the ``Johnson Amendment'' and came into
being upon enactment of the Internal Revenue Code in 1954. 68A Stat.
163 (ch. 736).
VI. THE SUBSEQUENT INTERPRETATIONS OF IRC 501(C)(3) BY THE IRS AND
COURTS MAKES IT CLEAR THAT THIS PORTION OF THE TAX CODE IS MEANT TO
REPRESS PARTICIPATION IN THE POLITICAL PROCESS
The requirement that a church or charitable organization not engage
in political campaign activities has been expanded to prohibit even
remotely partisan involvement. In Christian Echoes National Ministry
Inc. v U.S., 470 F2d 849 (10th Cir 197. cert. den. 414 U.S. 864 (1973),
a federal appeals court denied tax exempt status to a religious
organization for backing a conservative political agenda. The
organization, by means of publications and broadcasts, expressed its
opposition to candidates and incumbents considered too liberal and
endorsed conservative officeholders. The Tenth Circuit summarized the
unforgivable offense: ``These attempts to elect or defeat certain
political leaders reflected. . . [the organization's] objective to
change the composition of the federal government.'' Christian Echoes,
470 F2d at 856. See also Monsky v. Comm., 36 T.C.M. 1046 (1977);
Giordano v Comm., 36 T.C.M. 430 (1977). This flat ban on religious
involvement in politics is not limited to active campaigning, however.
In 1978 the IRS issued a ruling that confined ``voter education''
activities to those that are nonpartisan in nature. Rev. Rul. 78-248,
1978--1 C.B. 154.(10)
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\(10)\ This ruling was a reversal of a prior ruling wherein the IRS
stated that the prohibitions against involvement in political campaigns
``do not refer only to participation or intervention with a partisan
motive, but to any participation or intervention which affects voter
acceptance or rejection of a candidate.'' Consequently, the IRS
determined that ``the organization's solicitation and publication of
candidates' views on topics of concerns to the organization can
reasonably be expected to influence voters to accept or reject
candidates.'' Rev Rul.78--I 60. 1978--1 C.B. at 154 (emphasis added).
This flat ban on all First Amendment activity relating to politics
engendered a public outcry and a rare reversal by the IRS. Hopkins at
332.
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In a later ruling the IRS specified the following factors as
demonstrating the absence of prohibited campaign activity by a church
or nonprofit organization:
1. Lthe voting records of all incumbents will be presented;
2. Lcandidates for reelection will not be identified;
3. Lno comment will be made on an individual's overall
qualifications for public office;
4. Lno statements expressly or impliedly endorsing or rejecting
any incumbent as a candidate for public office will be made;
5. Lno comparison of incumbents with other candidates will be
made;
6. Lthe organization will point out the inherent limitations of
judging the qualifications of an incumbent on the basis of
certain selected votes, by stating the need to consider such
unrecorded matters as performance on subcommittees and
constituent service;
7. Lthe organization will not widely distribute its compilation
of incumbents' voting records;
8. Lthe publication will be distributed to the organization's
normal readership only; and
9. Lno attempt will be made to target the publication toward
particular areas in which elections are occurring nor to time
the date of publication to coincide with an election campaign.
Rev. Rul. 80-282, 1980-2 C.B. 178. The IRS' application of IRC
501(c)(3) then, is to limit any preferential expression for a political
candidate. There is no compelling governmental reason to so limit the
First Amendment activities of churches and houses of worship. This
restriction should thus be modified to track the ``insubstantial''
standard regarding lobbying, and apply that standard to political
activity as well.
VII. THE IRS APPLICATION OF THE LIMITATION ON CHURCHES PARTICIPATING IN
THE POLITICAL PROCESS IS EXPANDING, INTRUSIVE AND SELECTIVE
Under the First Amendment, the government lacks the license to make
determinations about whether a ``creed'' or ``form of worship'' is
sufficiently ``recognized,'' and whether the church has an adequate
organizational structure (i.e., properly ordained ministers, a
literature ``of its own,'' etc.) to prevent IRS intrusion and
inspection. If ``it is not within the judicial ken to question the
centrality of particular beliefs or practices of faith'' and the
``courts must not presume to determine the place of a particular belief
in a religion or the plausibility of a religious claim,'' Employment
Division v. Smith, 494 U.S. 872, 878 (1990) (citations omitted), it
stands to reason that the other branches of the federal government are
constitutionally unfit to make those judgments as well. Many
independent small churches do not meet regularly, do not have an
independent existence, do not have ordained ministers, do not have a
formal doctrinal code, and yet nonetheless are churches warranting tax
exemption.(11)
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\(11)\ Indeed, by the standards the IRS applies today, Jesus and
the Apostles would not qualify for ``church'' status. See, Internal
Revenue Service Manual '321.3 (outlining the 14 point test used by the
IRS to determine ``church'' status).
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Similarly, Treasury regulations describe a church as an
organization the duties of which include the ``ministration of
sacerdotal functions and the conduct of religious worship.'' Reg. I.51
I-2(a)(3)(ii). This definition begs the question, because it requires
Treasury officials to exercise their own judgment in determining what
is a priestly function, and what is sufficient ``religious worship'' to
qualify for ``church'' status.
Governmental judgments of this kind are not only unworkable, they
are dangerous and unconstitutional. The Supreme court has reiterated
the oft repeated principle that ``religious freedom encompasses the
power of religious bodies to decide for themselves, free from state
interference, matters of church government as well as those of faith
and doctrine. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696,
722 (1976) (emphasis added); Kedroffy St. Nicholas Cathedral, 344 U.S.
94, 116 (1952). In Corp. of Presiding Bishops v. Amos, 483 U.S. 327,
341 (1987), Justice Brennan noted: ``religious organizations have an
interest in autonomy in ordering their internal affairs, so that they
may be free to: ``Select their own leaders, define their own doctrines,
and run their own institutions.'' (citations and internal quotation
marks omitted, emphasis added). Given the weight of constitutional
precedent in this area, it defies rationality for the government to
empower its tax collecting arm with the ability to invade the religious
autonomy of churches while other branches of the government are
constitutionally forbidden from doing so.
This is of even greater concern because conservative or orthodox
and liberal or reform church organizations are treated quite
differently by the IRS. For example, a conservative evangelical church
in upstate New York, the Church at Pierce Creek, had its tax exemption
revoked in 1995 for impermissible ``political'' activity. The offending
activity involved its published moral and religious stand in the
newspaper calling abortions on demand, homosexuality, and premarital
sex ``sins.'' ``Christians'' were admonished to oppose such ``sins''
and not vote for then Governor Clinton.(12) Historically,
currently, and at the time the Church at Pierce Creek was having its
tax exempt status revoked, numerous churches engaged in similar or more
egregious violations, as follows:
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\(12)\ Branch Ministries v. Rossotti, 40 F. Supp. 2d 15 (D.D.C.
1999); aff'd, 211 F.3d 1137 (D.C. Cir. 2000).
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Historical Context
1. Since the campaign of Thomas Jefferson, religious and political
controversy has been prominent in approximately one of every three
campaigns for the presidency. B. Dulce & E. Richter, Religion and the
Presidency v, 1-11 (1962). See also H. Foote, The Religion of Thomas
Jefferson 45 (1960) (electioneering pamphlets written and distributed
by clergymen accused Jefferson of atheism and thus ``too dangerous an
enemy of Christianity to be president'').
2. ``During the 1980 election year, a number of religious groups
participated in energetic presidential and congressional campaign
activities to promote the election of politicians who share their
beliefs.'' Note, ``Religion and Political Campaigns: a Proposal to
Revise Section 501(c)(3) of the Internal Revenue Code,'' 49 Fordham L.
Rev. at 537 (1981) (footnotes omitted).
Political Activity by Churches Where No Sanctions Have Been Levied, But
for Which Other Churches Have Had Their Tax Exemptions Revoked
3. ``[T]he Reverend Jesse Jackson . . . campaigned from pulpits of
black churches across the nation in his pursuit of the Democratic
nomination'' for President in 1984. Reichley, Religion in American
Public Life (The Brookings Institution, Wash., D.C. 1985). See also
Rosenthal, ``Prelates and Politics: Current Views on the Prohibition
Against Campaign Activity,'' Tax Notes 1122 (1991); and Chisolm,
``Politics and Charity: A Proposal for Peaceful Coexistence.'' 58 Geo.
Wash. L. Rev. (No. 2) 308 (1990); Tesdahl, ``Intervention in Political
Campaigns by Religious Organizations After the Pickle Hearings--A
Proposal for the 1990s,'' 4 Exempt Org. Tax Rev. (No. 9) 1165 (1991).
4. The IRS Chief Counsel's office ``reluctantly'' concluded in 1989
that an organization ``probably'' did not intervene in a political
campaign on behalf of or in opposition to a candidate for public
office, even though the organization ran a political advertising
program that (1) was, in the words of the IRS, ``mostly broadcast
during a two week period around the Reagan/Mondale foreign and defense
policy debate on October 21, 1984,'' (2) contained statements that
``could be viewed as demonstrating a preference for one of the
political candidates'' [Mondale], (3) ``could be viewed'' as having
content such that ``individuals listening to the ads would generally
understand them to support or oppose a candidate in an election
campaign,'' (4) involved statements that were released so close to the
November vote as to be ``troublesome.'' IRS Technical Advice Memorandum
8936002. Even though these campaign broadcasts were in clear violation
of the IRS' voter education rules, see e.g., Rev. Rul. 86-95, 1986-1
C.B. 332, the IRS nonetheless took no action against this charitable
organization for this campaign activity.
5. 9/25/94 (13)--then-Governor of New York Mario Cuomo,
President Clinton, and New York Mayor Rudolf Gulliani all campaigned on
behalf of Governor Cuomo from the pulpit of the Bethel A.M.E. Church in
Harlem, New York.
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\(13)\ The cited dates are the dates of articles about the church
campaign events, not necessarily the dates of the events themselves.
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6. 10/23/94--Senator Charles Robb and Governor Wilder campaigned on
behalf of Senator Robb from the pulpit of the Trinity Baptist Church in
Richmond, Virginia.
7. 10/11/94--California Democratic gubernatorial candidate Kathleen
Brown campaigned in five different Los Angeles churches: Bethel A.M.E.
Church, the Mount Tabor Missionary Baptist Church, the First A.M.E.
Church, and the West Los Angeles Church of God in Christ.
8. 11/21/92--Vice President Al Gore campaigned from the pulpit of
three different Savannah, Georgia churches on behalf of Democratic run-
off candidate Wyche Fowler.
9. 4/5/92--Presidential candidate Bill Clinton campaigned from the
pulpit of the Bridge Street A.M.E. church in Harlem, New York.
10. 1/27/92--Democratic presidential candidate Tom Harkin
campaigned from the pulpit of the Heritage United Church of Christ,
located in Baltimore, Maryland.
11. 8/14/90--District of Columbia Mayor Marion Barry campaigned
from the pulpit of the Israel Baptist Church.
12. 4/30/90--New York Democratic congressional candidate Charles
Shumer campaigned at St. John's Church in New York, speaking with 30
black ministers.
13. 4/98--Democratic congressional candidate contenders Ohio State
Senator Jeffrey D. Johnson and Cuyahoga County Prosecutor Stephanie
Tubbs Jones campaigned at the Starlight Baptist Church in Cleveland
``for an endorsement interview by a black ministers group.'' Johnson
spends his Sundays campaigning at black churches.
14. 4/8/98--Florida Republican gubernatorial candidate campaigned
at Faith Memorial Baptist Church in Liberty City.
15. 3/31/98--Detroit Democratic gubernatorial candidate Doug Ross
``announced a 19-member Executive Board of Clergy United for Ross''
which was ``expected to include 250 ministers by May.''
16. 3/8/98--Chicago Democratic gubernatorial candidate Roland
Burris campaigned at Chicago churches.
17. 2/22/98--Chicago Democratic gubernatorial candidate Jim Burns
``preached his crime-fighting message to South Side parishioners at a
storefront church called the House of Refuge.''
18. 2/14/98--Democratic congressional candidate Irma Cohen ``is
relying on Operation Big Vote, the church-based alliance set up by
Florida Democrats in 1994 to bring out the black vote. 'The one thing
we have going for us is the church network,' Kennedy said. 'Rightly or
wrongly, 90 percent of the people in the church do what the minister
says.''
19. 1/6/98--Former Democrat Congressman Rev. Floyd Flake, endorsed
the congressional candidacy of New York Democratic Assemblyman Gregory
Meeks, during services at Flakes' Church, the Allen African Methodist
Episcopal Church in Jamaica, Queens.
20. 11/13/97, 10/24/97--New Jersey Democratic gubernatorial
candidate Jim McGreevy during the course of his campaign, campaigned in
more than 100 churches, and made 104 campaign visits to African-
American churches.
21. 11/3/97--Both Virginia Democratic gubernatorial candidate
Donald S. Beyer, Jr. and Virginia Republican candidate James S.
Gilmore, III campaigned in churches across the State of Virginia.
22. 11/2/97--Roman Catholic Bishop Frank J. Rodimer endorsed New
Jersey Democratic gubernatorial candidate Jim McGreevy in his Sunday
service homily at St. John's Cathedral in Paterson.
23. 11/1/97, 10/29/97--Executive Director of the Black Ministers
Council of New Jersey, Rev. Reginald Jackson, endorsed Republican
Governor Christie Whitman, while 24 African-American ministers
representing more than 600 churches statewide endorsed Democratic
gubernatorial candidate Jim McGreevey.
24. 10/20/97--Rev. Al Sharpton endorsed the candidacy of New York
Democratic mayoral candidate Ruth Messinger during Sunday worship
services at the Bethel A.M.E. Church in Harlem, and at the New
Jerusalem Baptist Church in Queens.
25. 10/4/97--Washington Governor Gary Locke made four campaign
visits to a Redmond Buddhist Temple, where he was offered sizable
campaign donations.
26. 10/4/97--Muslim Amatullah Yamini campaigned in Christian
churches in the Onondaga County, New York, State legislative district
Democratic primary.
27. 10/2/97--Houston, Texas Democratic mayoral candidate Lee P.
Brown campaigned at the Green Grove Missionary Church.
28. 10/1/97--New York Democratic mayoral candidate Ruth Messinger
campaigned at ``the Christian Life Center, a 7000-member
nondenominational ministry in Brownsville, Brooklyn.''
29. 5/15/97--The Black Clergy of Philadelphia, representing 450
churches, announced their choices for judicial candidates at the Vine
Memorial Baptist Church. The clergy members were joined by many of the
candidates they were endorsing.
30. 12/9/96--At the Houston, Texas, Windsor Village United
Methodist Church: ``The message to God came just after U.S. Rep.
Richard Gephardt of Missouri, the Democratic leader of the U.S. House,
asked the audience to support the reelection of Democratic U.S. Rep.
Ken Bentsen.'' Rep. Gephardt and Rep. Bentsen then proceeded to
campaign at a Chinese Baptist church and several African American
churches in Houston.
31. 11/11/96--As the Denver Post plainly put it: ``Don't try to
tell a black minister about the separation of church and state. Not
when the state comes striding into the sanctuary nearly every Sunday,
begging for votes. . . . Other political and religious leaders in
Denver say far more candidates than Webb owe their elections to
northeast Denver and the political work of black churches there. They
say Tim Wirth and Gary Hart could not have won their U.S. Senate races
without an all-out effort from the church congregations.''
32. 11/5/96--U.S. Senator Paul Simon campaigned at the Grace United
Methodist Church in Springfield, Illinois, on behalf of Democratic
congressional candidate Dick Durbin.
33. 11/5/96--Rev. Jesse Jackson campaigned on behalf of Rhode
Island Democratic candidates at the Pond Street Baptist Church in
Providence.
34. 11/4/96--President Clinton campaigned at the St. Paul AME
Church in Tampa, Florida.
35. 11/4/96--Democratic Rep. Martin Frost ``made campaign stops at
four African-American churches [during Sunday services] in southeast
Fort Worth, Texas.''
36. 11/4/96--Louisiana Democratic Senatorial Candidate Mary
Landrieu ``visited African-American churches Sunday, including Asia
Baptist Church, where she received an enthusiastic endorsement from the
Rev. Zebadee Bridges.''
37. 11/4/96--North Carolina Democratic ``Senate Candidate Harvey
Gantt visited five black Charlotte congregations on Sunday, mounting
the pulpit in three . . . `There comes a time in a campaign when you
have to trust the voters to do the right thing,' he said from the
pulpit, `I'm not going to beat up on Senator Helms . . . All I'm going
to say is, he's been there 24 years. That's enough time.' ''
38. 11/4/96--Pastor Joe Fuiten of the Cedar Park Assembly of God
Church in Seattle, Washington urged his congregants to vote for
Republican candidates, while across town at the Mount Zion Baptist
Church, Rev. Samuel B. McKinney urged his church members to vote the
Democratic ticket.
39. 11/4/96--Democratic Senatorial candidate Mark Warner campaigned
in African American churches across the State of Virginia.
40. 11/3/96--Democratic Memphis Mayor Herenton endorsed Democratic
congressional candidate Harold Ford, Jr. at the Greater Imani Church,
in Memphis, Tennessee.
41. 10/28/96--The Northeast Ministers Alliance, an organization of
60 mostly African American churches located in Houston Texas, endorsed
a slate of Democratic Candidates running for various state-level
offices, and one Republican running for local sheriff.
42. 10/21/96--President Clinton campaigned at the New Hope Baptist
Church in Newark, New Jersey.
43. 9/17/96--``The Greater Denver Ministerial Alliance,
representing more than 100 black churches and 20,000 Denver voters,
endorsed Bill Clinton for president, Al Gore for vice president,
Democrat Ted Strickland for the Senate and Republican Joe Rogers for
the House.''
44. 9/13/96--Reverend Acen Phillips endorsed the candidacy of
Republican congressional African American candidate Joe Rogers, at the
Mount Gilead Baptist Church, in Denver, Colorado.
45. 8/26/96--Vice President Al Gore campaigned with the Rev. Jesse
Jackson at the Fellowship Baptist Church in Charleston, North Carolina.
The Rev. Jackson is co-minister of the church.
46. 11/8/95--U.S. Democratic Rep. Cleo Fields campaigned for
governor at a New Orleans church.
47. 9/15/95--Several Orthodox Rabbis spoke from the pulpit in favor
of Baltimore Democratic mayoral primary candidates.
48. 8/12/95--``the influential and powerful United Ministerial
Coalition of Baltimore threw their thousands of affiliated church
members behind the re-election effort of [Baltimore] Mayor Kurt L.
Shmoke.''
49. 5/18/95--Gubernatorial candidate Kentucky Senate President John
``Eck'' Rose campaigned at the Canaan Missionary Baptist church in
Louisville, Kentucky.
50. 2/28/95--Philadelphia Mayor Edward G. Rendell picked up a re-
election endorsement from the Black Clergy of Philadelphia & Vicinity,
representing more than 400 churches and ministries. The endorsement
``was formally announced at a press conference in the basement of the
Vine Memorial Baptist Church in West Philadelphia.''
51. 2/6/95--Chicago Democratic primary mayoral candidate Joe
Gardner campaigned at the St. Stephen's African Methodist Episcopal
Church, on Chicago's west side.
52. 11/7/94--Rev. Jesse Jackson campaigned on behalf of Democratic
candidates at the New Hope Church of God in Christ, in Norfolk,
Virginia.
53. 11/6/94--Republican Senatorial Candidate Ollie North and
Democratic Senatorial incumbent Charles Robb both campaigned at
Virginia churches.
54. 11/3/94--President Clinton campaigned for Democratic candidates
at the Antioch Baptist Church in Cleveland, Ohio.
55. 10/31/94--New Jersey Democratic Senator Frank Lautenberg
campaigned at the Salem Baptist Church in Jersey City.
56. 10/24/94--Former Virginia Gov. Douglas Wilder campaigned for
Virginia Senator Charles Robb at the Trinity Baptist Church.
57. 10/13/94--New Jersey Democratic Senator Frank Lautenberg was
endorsed by a group of 30 ministers at a news conference held at the
Zion AME Church in Brunswick, New Jersey.
58. 7/19/94--Democratic Rep. Maxine Waters campaigned at Detroit's
Dexter Avenue Baptist Church on behalf of Michigan Democratic
gubernatorial candidate Howard Wolpe.
59. 6/2/94--Democratic Governor Mario Cuomo campaigned at the St.
John Baptist Church in Buffalo, New York.
60. 5/13/94--Democratic Governor Mario Cuomo campaigned at ``the
Hillcreat Jewish Center in Queens, a Conservative shul, to Temple
Emmanuel on Fifth Avenue, a Reform synagogue, and wrapped up his
evening at the Orthodox Union dinner at the Grand Hyatt Hotel.''
VIII. THE IRS SHOULD NOT HAVE UNBRIDLED DISCRETION
Clearly, churches and houses of worship engage in ``political
activity.'' However, the IRS uses its authority selectively to only
target those it wishes to silence or threaten. Today it may be orthodox
and conservative views, but tomorrow it could be liberal or
unconventional views. Such unbridled discretion not only creates
constitutional concerns, but illustrates why Congress needs to reign-in
the IRS to insure constitutional compliance and lift the sword of
Damocles hanging over churches. The Supreme Court has ``previously
identified two major First Amendment risks associated with unbridled
licensing schemes: self-censorship by speakers in order to avoid being
denied a license to speak [or having one withdrawn]; and the difficulty
of effectively detecting, reviewing and correcting content-based
censorship as applied without standards by which to measure the
licensor's action.'' City of Lakewood v. Plain Dealer Publishing
Company, 108 S. Ct. 2138, 2145 (1988).
In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969),
the court also explained: ``[w]e have consistently condemned licensing
[or regulatory] schemes which vest in administrative officials
discretion to grant or withhold a permit upon broad criteria.'' This is
the heart of the problem which has been created due to the IRS'
discretion and selective application of the law. It is precisely the
absence of sufficient clear and specific standards by which to gage the
qualifications and conduct of houses of worship in the political
activities area which needs to be corrected. Otherwise, government
officials may unconstitutionally ``pursue their personal
predilections.''
IX. A SIMPLE REVISION TO THE TAX CODE WILL ALLEVIATE THIS PROBLEM
The IRS' enforcement and regulation of the ``political'' activities
of houses of worship is discriminatory and improperly based upon its
``predilections'' of the moment: one church is permitted to say
something another is not, one's activity is appropriate, but same
activity by another not, etc. To avoid this type of arbitrary or
capricious enforcement, and remove the dramatic chilling impact the
IRS' selective enforcement has, the Houses of Worship Political Speech
Protection Act proposes a substantiality test for this type of
``political activity,'' as is currently the case with regard to
legislative or lobbying activity by churches and houses of worship.
Present Language of IRC 501(c)(3):
The following organizations are [exempt from taxation under this
subtitle. . .]
Corporations, and any community chest, fund, or foundation,
organized and operated exclusively for religious charitable,
scientific, testing for public safety, literary, or educational
purposes, or to foster national or international amateur sports
competition (but only if not part of its activities involve the
provision of athletic facilities or equipment), or for the
prevention of cruelty to children or animals, no part of the
net earnings of which inures to the benefit of any private
shareholder or individual, no substantial part of the
activities of which is carrying on propaganda, or otherwise
attempting, to influence legislation (except as otherwise
provided in subsection (h)), and which does not participate in,
or intervene in (including the publishing and distribution of
statements), any political campaign on behalf of (or in
opposition to) any candidate for public office.
Proposed Change to IRC 501(c)(3) in the Houses of Worship Political
Speech Protection Act:
The following organizations are [exempt from taxation under this
subtitle. . .]
Corporations, and any community chest, fund, or foundation,
organized and operated exclusively for religious charitable,
scientific, testing for public safety, literary, or educational
purposes, or to foster national or international amateur sports
competition (but only if not part of its activities involve the
provision of athletic facilities or equipment), or for the
prevention of cruelty to children or animals, no part of the
net earnings of which inures to the benefit of any private
shareholder or individual, no substantial part of the
activities of which is carrying on propaganda, or otherwise
attempting to influence legislation (except as otherwise
provided in subsection (h)), and except in the case of an
organization described in section 508(c)(1)(A) (relating to
churches), which does not participate in, or intervene in
(including the publishing and distribution of statements), any
political campaign on behalf of (or in opposition to) any
candidate for public office and, in the case of an organization
described in section 508(c)(1)(A), no substantial part of the
activities of which is participating in, or intervening in
(including the publishing or distributing of statements), any
political campaign on behalf of (or in opposition to) any
candidate for public office.
X. CONCLUSION
Given the historic and critically necessary role churches and
houses of worship have played in speaking to the issues of the day, and
with the continuing desire of many religious people in the United
States to speak out collectively on matters of moral importance, the
time has come to rectify a nearly 50-year old injustice and to change
IRC 501(c)(3), as proposed in the Houses of Worship Political Speech
Protection Act.
Chairman HOUGHTON. Dr. Gaddy?
STATEMENT OF REVEREND C. WELTON GADDY, PH.D., EXECUTIVE
DIRECTOR, INTERFAITH ALLIANCE
Reverend GADDY. Yes. Thank you, Chairman Houghton and
Members of the Subcommittee on Oversight. I appreciate the
opportunity to share with you concerns about the two bills
pending before this Committee.
My name is C. Welton Gaddy. I serve as Executive Director
of the Interfaith Alliance, a faith-based, nonpartisan,
grassroots organization dedicated to promoting the positive and
healing role of religion in public life, and challenging those
who employ religion to promote intolerance. The Interfaith
Alliance is supported by more than 150,000 Members drawn from
over 50 different religious traditions, local alliances in 38
States, and a national network of religious leaders.
I also serve as Pastor for preaching and worship at
Northminster Baptist Church in Monroe, Louisiana.
Profound constitutional issues are at stake in these two
legislative proposals. Adoption of this legislation would alter
the whole landscape of church-State relations in this Nation.
Current law protects the integrity of houses of worship and
prevents government entanglement in the affairs of houses of
worship. With the lifting of the absolute prohibition on
political activities comes an invitation to the government to
regulate the practices and affairs of a house of worship.
However, even if, by some stretch of the imagination, one
could conceive that the bills before this Subcommittee today
present no constitutional problems, I would oppose them. I
would oppose them as a pastor who has worked in congregational
ministry for more than 40 years, as well as the Executive
Director of a national interfaith organization that values the
importance of religious congregations. I can think of few ways
to compromise the integrity of religious congregations and to
blunt the vitality of religion in our land more than by the
passage of either one of these bills.
First of all, neither the Houses of Worship Political
Speech Protection Act nor the Bright-Line Act of 2001 is wanted
or needed by most religious people in this land. A recent
Gallup/Interfaith Alliance foundation poll of religious leaders
found that 77 percent of clergy believe they should not endorse
political candidates. Of those participating in this poll, 59
percent identified themselves as evangelicals. It is ironic
that these results show that the very people whom these bills
are supposedly intended to empower are people who adamantly
resist even the premise on which the bills are based.
Second, these bills have the potential to compromise
religious leaders' ministries of compassion and even to silence
the prophetic voice of communities of faith in this land.
Passage of either of these bills would turn pastors, imams,
rabbis, and other would-be prophets into political operatives
to be lobbied by candidates for public office and used as
endorsers of partisan campaigns.
To saddle religious leaders with the skepticism commonly
associated with politics would erode the reverence accorded to
religious offices and leave congregations devoid of clergy
functioning with an authority rooted in spirituality. When
pulpits, bimahs, and other sacred desks from which the
Scriptures and oral traditions of various religions are read
and interpreted become stumps on which ministers stand to
deliver political speeches and hand out political endorsements,
the prophetic voice of the religious community, arguably
religion's most important contribution to this Nation, will be
silenced.
I also have grave concerns about the health of religious
congregations. Lifting the absolute ban on politicking is sure
to create a rift between the leadership of a house of worship
and the congregants. A religious leader in a congregation must
be able to serve all of the people in that congregation.
More than once in a single day, I have conducted funerals
for people of competing political persuasions and blessed
babies born to parents who wanted nothing to do with the
political process. In each instance the families involved
sought the ministry of a clergyperson, not a politician. Taking
on the role of a political power broker would jeopardize beyond
measure the acceptance and effectiveness of a minister within a
congregation, who must be able to serve all members of that
congregation.
Then there is the issue of money. When people of faith give
money to their congregations as an act of devotion to God, they
should not have to worry about a portion of that money going to
politicians. To turn offerings given in the name of God as acts
of worship into political contributions devoted to the support
of partisan politicians is a sacrilege.
Needless to say, people of faith are not monolithic in
their political ideology. Passage of this legislation will
divide religious communities dramatically and literally
reconfigure congregational life in this Nation.
Supporters of these two bills call for their support under
the guise of assuring freedom for houses of worship. Make no
mistake about it, at this very moment houses of worship are
free to endorse candidates for political offices and to give
moneys to those candidates' campaigns. They just cannot do that
politicking with funding that is tax-deductible. Every house of
worship is free to forfeit the privacy of its identity as a
spiritual body and to function as a political entity governed
by all of the IRS regulations and State and Federal laws that
apply to political institutions.
Mr. Chairman, I hope that each of these proposed pieces of
legislation, which represents as serious a threat to the
integrity and vitality of religion in this Nation as it does to
the continuation of religious liberties guaranteed by the
Constitution, will be stopped at this moment in this Committee.
Thank you.
[The prepared statement of Reverend Gaddy follows:]
Statement of Reverend C. Welton Gaddy, Ph.D., Executive Director,
Interfaith Alliance
Good afternoon Chairman Houghton and members of the Subcommittee on
Oversight. I appreciate the opportunity to share with you my concerns
about two bills pending before this committee, H.R. 2357, the Houses of
Worship Political Speech Protection Act and H.R. 2931, the Bright-Line
Act of 2001.
Mr. Chairman, I consider myself fortunate to have had the pleasure
of working with you on issues of mutual concern over your long career
of service to this nation. I would be remiss if I did not also
acknowledge Congressman John Lewis, who has been a good friend to The
Interfaith Alliance Foundation through his work of many years on our
Walter Cronkite Faith and Freedom Award Selection Committee.
For those on the Oversight committee whom I have not met, I am the
Rev. Dr. C. Welton Gaddy, and I serve as the executive director of The
Interfaith Alliance. The Interfaith Alliance is a faith-based, non-
partisan, grassroots organization dedicated to promoting the positive
and healing role of religion in the life of our nation and challenging
those who employ religion to promote intolerance. With more than
150,000 members drawn from over 50 faith traditions, local Alliances in
38 states, and a national network of religious leaders, The Interfaith
Alliance promotes compassion, civility and mutual respect for human
dignity in our increasingly diverse society.
In addition to my role at the Alliance, I also serve as Pastor for
Preaching and Worship at Northminster (Baptist) Church in Monroe,
Louisiana.
Mr. Chairman and members of the Committee, The Interfaith Alliance
has very serious concerns about H.R. 2357 and H.R. 2931. Indeed, we are
fundamentally opposed to both of these bills that are before you today.
Our analysis of H.R. 2357, the Houses of Worship Political Speech
Protection Act, is in accord with the Congressional Research Service,
which has stated that this bill ``would amend IRC Section 501(c)(3) to
exempt churches and church auxiliaries from the absolute prohibition on
participation or intervention in a political campaign and add language,
which would measure churches by the same test that is used for all
501(c)(3) organizations; i.e., no substantial part of their activities
would be participating in, or intervening in any political campaign on
behalf of any candidate for public office.''\1\
---------------------------------------------------------------------------
\1\ Marie B. Morris, ``Bills to Permit Churches to Engage in
Campaign Activities,'' Congressional Research Service, 15 Nov. 2001.
---------------------------------------------------------------------------
In other words, despite the unique place that houses of worship
hold in our current tax code, this bill seeks to dismantle the absolute
ban on partisan politicking and allows houses of worship to engage in
the mechanisms of partisan politics while retaining their tax-exempt
status and receiving tax-deductible contributions.
H.R. 2931, the Bright-Line Act of 2001, is similar to H.R. 2357 in
intent, except that it would ``add a new subsection to IRC, section
501, applicable to churches, church auxiliaries and members of an
affiliated group of organizations. The proposed subsection would deny
tax exemption to a church or church auxiliary if the organization
normally spent more than 20% of its gross revenues in a year on
activities to influence legislation or, normally spent more than 5% of
its gross revenues on political campaign activities.'' \2\
---------------------------------------------------------------------------
\2\ Ibid.
---------------------------------------------------------------------------
Thus, while H.R. 2357 lifts the ban on absolute prohibition of
partisan politicking while leaving the ``no substantial part'' test up
to interpretation, H.R. 2931 lifts the ban but provides a benchmark for
``no substantial part'' and specifically includes lobbying activities.
Mr. Chairman, profound constitutional issues are at stake in these
two bills. As a religious leader with a national constituency and as an
active Baptist pastor from Louisiana, I oppose these legislative
proposals. Adoption of this legislation would alter the whole legal
landscape of church-state relations in this nation. When I speak about
the possible consequences of these bills, my passion is deep, and my
concern about their negative impact on religion's prophetic voice in
our nation is real.
Even if by some stretch of the imagination one could conceive that
the bills before this committee today presented no constitutional
problems, I would oppose them. As a pastor who has worked in
congregational ministry for more than 40 years as well as the executive
director of a national interfaith organization that values the
importance of religious congregations, I shudder to think of the
devastation that would be visited upon the religious community and its
leaders were these bills to become law.
Indeed, I can think of few ways to compromise the integrity of
religious congregations and to blunt the vitality of religion in our
land more than by the passage of either one of these bills.
First, neither the House of Worship Political
Speech Protection Act, nor the Bright-Line Act of 2001 is
wanted or needed among most religious people in this land and
the clergy who lead them. Any claim by supporters of these
bills that there is a mainstream movement among this nation's
clergy to rewrite the tax code to allow houses of worship to
engage in partisan politicking is simply without foundation.
As a matter of fact, it is far more accurate to say that clergy
appreciate the firewall that 501(c)(3) status provides between the
inner-sanctuaries of houses of worship and what has unfortunately
become the ``anything goes'' culture of a modern day political
campaign.
This assertion is backed by a recent national Gallup/Interfaith
Alliance Foundation poll of religious leaders, which found that 77% of
clergy believe that they should not endorse political candidates. Of
those participating in the poll, 59% identified themselves as
Evangelicals. It is ironic that these polling results show that the
very people whom these bills are supposedly intended to empower
adamantly resist even the premise on which the bills are based.
I am not suggesting that The Interfaith Alliance believes that
clergy and houses of worship do not have an important role to play in
the political process. We believe that clergy have an absolute right
and further, a moral obligation, to address the crucial issues of the
day and to serve the nation as a prophetic voice in times of calm and
crisis.
But clergy do not need a change in the current law to be faithful
to this important responsibility. The ability of clergy to educate
their congregations about important issues of the day is unambiguously
legal. The only activities that tax-exempt houses of worship may not
engage in are endorsing or opposing candidates, or using their tax-
exempt donations to contribute to partisan campaigns.
Since the introduction of these bills last year, supporters of
these measures have argued their merit under the guise of assuring
freedom for houses of worship. Make no mistake about it, at this very
moment houses of worship are free to endorse candidates for political
offices and to give money to those candidates' campaigns. However, such
politicking cannot be done with funding that is tax deductible. Every
house of worship is free to forfeit the primacy of its identity as a
spiritual body and to function as a political entity governed by all of
the IRS regulations and state and federal laws that apply to political
institutions.
Second, these bills have the potential to
compromise religious leaders' ministries of compassion and even
to silence the prophetic voice of communities of faith in this
land.
Throughout the history of our nation, religious leaders have
provided a perspective of integrity and independence when they speak
about the moral issues. Whether it was the civil rights movement of the
1960's or the importance of forgiving third world debt in 2000,
religious leaders have spoken conscientiously, often in the face of
negative influences and political pressure.
Passage of either of these bills would turn pastors, imams, rabbis
and other would-be prophets into potential political operatives to be
lobbied by candidates for public office and used as endorsers of
partisan campaigns. To saddle religious leaders with the controversy
and skepticism commonly associated with politics would erode the
reverence accorded to religious offices and leave congregations devoid
of clergy functioning with an authority rooted in spirituality. When
pulpits, beemas, and other sacred desks from which the scriptures and
oral traditions of various religions are read and interpreted become
stumps on which ministers stand to deliver political speeches and hand
out political endorsements, the prophetic voice of the religious
leaders community--arguably religion's most important contribution to
the nation--will be silenced.
This view is shared by Deirdre Dessingue, associate general counsel
of the National Conference of Catholic Bishops who wrote in a July 2001
article that, ``as the church pursues its religious mission, it is
guided by its own unique vision of the way our society should be. As a
God-given vision, it admits of no compromise. Yet since compromise is
the essence of politics, choosing involvement in electoral politics,
risks compromise, co-option, and collusion.'' She concludes by saying,
``a religious message without integrity is no message at all.'' \3\ I
could not agree with her more.
---------------------------------------------------------------------------
\3\ Dessingue, Deirdre, Prohibition in Search of a Rationale: What
the Tax Code Prohibits; Why; to What End?, 42 B.C.L. Rev 903 (2001).
---------------------------------------------------------------------------
Lifting the ban on politicking is also sure to create a rift
between the leadership of a house of worship and the congregants. A
religious leader in a congregation must be able to serve all of the
people in that congregation. More than once, in a single day, I have
conducted funerals for people of competing political persuasions and
blessed babies born to parents who wanted nothing to do with the
political process. In each instance, the families involved sought the
ministry of a clergyperson not the assistance of a politician. Taking
on the role of a political power broker would jeopardize beyond measure
the acceptance and effectiveness of a minister within a congregation.
Knowing well the schismatic passions related to partisan politics,
you easily can imagine a congregant, even in a time of need, refusing
to turn for help from a minister whose identity has been shaped by the
political endorsements that have become a part of his or her leadership
in a congregation. Passage of either one of these bills threatens the
effectiveness of ministers of compassion in religious congregations.
Third, current law protects the integrity of houses
of worship and prevents government entanglement in the affairs
of houses of worship. Churches, synagogues, temples and mosques
should not be used as partisan political rally halls or as
venues for partisan political fundraising activities.
With the lifting of the absolute prohibition on political
activities comes an invitation to the government to regulate the
practices and affairs of a house of worship. Surely there will be
different interpretations of what constitutes a ``substantial''
activity, a ``normal year'' or even, what constitutes an actual
partisan activity. Churches should not be in the business of defending
their denominational or financial affairs to the government, and
indeed, this is precisely the situation the framers of our Constitution
sought to avoid.
Fourth, when people of faith give money to their
congregations as an act of devotion to God, they should not
have to worry about a portion of that money going to
politicians. The fact is that members of religious
congregations will not make financial contributions to a
congregational budget knowing that a part of their financial
support for the ministries of that house of worship will end up
in the campaign war chest of a political candidate seeking help
in winning an election. To turn offerings given in the name of
God as acts of worship into political contributions devoted to
the support of partisan politicians is a sacrilege.
People of faith are not monolithic in their political ideology.
Passage of this legislation will divide religious communities
dramatically and literally reconfigure congregational life in this
nation. Religious people will realign themselves in congregations that
reflect their respective political positions. What conscientious
religious person would want to be a faithful member of a congregation
that supports a candidate for office that the person opposes on the
basis of conscience?
We do not want to see houses of worship identified more by the
political parties that they support than by the theology or the moral
values that they proclaim.
In the 2000 election, specifically in South Carolina, Michigan, and
Washington, we saw the sad spectacle of candidates for public office
highlighting theological differences between congregations in an
attempt to divide congregations for the purpose of dividing the
electorate and propelling voters to the polls. In Washington, Senator
John McCain's campaign took responsibility for sending the following
statement to primary voters by telephone:
``This is a Catholic Voter Alert. Gov. George Bush, Jr. has
campaigned against Sen. John McCain by seeking the support of
Southern Fundamentalists who have expressed anti-Catholic
views. Several weeks ago Gov. Bush spoke at Bob Jones
University in South Carolina. That's the same Bob Jones who
said the Pope was ``the antichrist'' and called the Church `a
satanic cult.' Sen. John McCain has strongly criticized this
anti-Catholic bigotry, while Gov. Bush stayed silent while
gaining the support of Bob Jones University. For this reason,
many Washington Catholics now support John McCain for
President. Please vote for John McCain. Thank you.'' \4\
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\4\ ``Religion Rules as Primaries Approach,'' Associated Press 3
March 2000.
Not to be outdone, then Christian Coalition President Pat Robertson
sponsored automated phone calls to voters prior to the Michigan
Republican primary in support of then Governor Bush criticizing Senator
McCain's record on abortion, and calling his campaign chairman, Senator
Warren Rudman, a ``bigot'' for criticizing Christian conservatives. In
this scenario, religion was used as a political football, and it truly
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was unfortunate.
Finally, passage of these bills would open a
dramatic new loophole in the campaign finance laws just passed
by this Congress. Donations to houses of worship are tax-
deductible because the government assumes that their much-
needed work is contributing to the common good of society, not
a political party or a partisan campaign.
Contributions to churches are tax deductible while donations to
political candidates and parties are not. Therefore, these bills would
create an exemption in our national campaign finance laws. Political
contributions that legally could not be made to candidates or their
parties could legally be channeled through the offerings of a house of
worship. Houses of worship will find themselves giving tax-deductible
dollars to politicians at the expense of the general public. All of
this will happen under the banner of faith. This is just not right.
Mr. Chairman and members of the committee, I must be honest with
you. When I first heard of legislative proposals that would blatantly
politicize houses of worship, I couldn't believe my ears and thought
someone was playing a practical joke on me. 114 co-sponsors later, I
now know better. Each of these proposed pieces of legislation
represents as serious a threat to the integrity and vitality of
religion in this nation as it does to the continuation of religious
liberty as guaranteed by the constitution. The bills are no joke. And I
am not laughing. I come here today to plead with members of this
committee to not allow these bills to go any further.
Chairman HOUGHTON. Thank you very much, Dr. Gaddy. Chairman
Houghton. Reverend Fauntroy.
STATEMENT OF HON. REVEREND WALTER E. FAUNTROY, PASTOR, NEW
BETHEL BAPTIST CHURCH, AND FORMER MEMBER OF CONGRESS
Reverend FAUNTROY. Chairman Houghton and Members of the
Subcommittee, my name is Walter Fauntroy. I am an experienced
politician and a well-trained Minister. I am in my 43rd year as
Pastor of New Bethel Baptist Church here in our Nation's
Capital. Over the course of those years, I have had the
privilege of being at the core of every major change in public
policy affecting people of African descent in this country.
In the decade of the sixties, I served as Director of the
Washington Bureau of Dr. Martin Luther King, Jr.'s Southern
Christian Leadership Conference, and in that capacity I
coordinated our activities for both the historic march on
Washington in 1963 and the voting rights march from Selma-
Montgomery in 1965.
I was Dr. King's chief lobbyist for the passage of the
Civil Rights Act of 1964 and the Voting Rights Act 1965. In the
decades of the seventies and eighties, I served as a Member of
this august body as the District of Columbia's first Delegate
to the Congress in 200 years, and during my 20-year tenure as a
Member of the House Banking, Finance, and Urban Affairs
Committee of the House, I had the privilege of being Chairman
of the Subcommittee on Domestic Monetary Policy, which oversaw
our participation through the Federal Reserve, the quasi-public
Federal Reserve Board, on the distribution and management of
money in the country. Then I served as Subcommittee Chairman on
the Subcommittee on International Development, Finance, Trade,
and Monetary Policy.
I do not want you to think as a Minister I believe money is
everything, but I have learned it is so far ahead of whatever
is second best when it comes to declaring good news to the
least of these that we have to manage to see to it that it
happens.
What I have learned as a Pastor, as a civil rights
activist, and as a Member of Congress over these years has led
me to appear before you today in support of H.R. 2357, the
Houses of Worship Political action Protection Act. In the 5
minutes allowed me, I want to share with you two definitions of
politics upon which I have acted over these years as Pastor, as
a civil rights activist, and as a Member of Congress.
The first definition is that politics is the means by which
we in a democracy translate what we believe into public policy
and practice. That is, we go to the polls and vote for people
who, if elected, promise to translate what we believe into
public policy and practice.
That right to vote is so precious to me because, as an
African American, I am painfully aware of how racist white
voters in the Southland, by denying my people the right to
vote, were able to translate what they believed into public
policy and practice. They believed that black people, for
example, should not be allowed to drink water from the same
public fountains used by white people, and they translated that
into public policy and practice.
Now, the second definition of politics upon which I have
always relied is that politics is the process of determining
who gets how much of what, when, and where, in five areas: Who
gets how much income, who gets how much education, who gets how
much health care, housing, and justice?
In fact, during my 20-year tenure in this Congress, I
became thoroughly conversant with our Nation's 14 Cabinet-level
agencies and their counterparts in the standing Committees of
the U.S. House and Senate that determined who gets how much of
what, when, and where in agriculture, in commerce, in labor, in
housing, in health and human services. That is what I have
learned as a politician.
Let me tell you what I have learned as a thoroughly trained
Pastor. I have learned from the prophet Isaiah that the basic
tenet of our Judeo-Christian-Muslim heritage is that we are
``anointed of God to declare good news to the poor, to bind up
the broken-hearted, and to set at liberty them that are
bound.''
You can understand, therefore, that as a citizen who has a
right to vote, to translate what he believes into public policy
and practice, and as a man of faith who is anointed to declare
good news in terms of access to income, education, health care,
housing, and justice to the least of these, I have never and I
will never allow anyone to deny me the right to vote my beliefs
at the polls. I have not and I will not allow anyone to deny me
the right to try to persuade as many people as I can to vote
good news for the poor.
We enter our houses to worship, and we depart to serve. If
we are to serve, the question will not be whether you are
Baptist or white or black or Muslim or Jew or atheist. The
question is, when I was hungry, did you feed me?
In my view, therefore, there is no election, local, State,
or national, where I think the plight of the least of these is
at stake that I do not endorse a candidate of my choice to the
Members of my church and try to influence them to vote the
values that we embrace as serious people of faith. That is my
right, both as a citizen and as a man of faith, and I will
defend that right, even for those people of faith with whom I
vehemently disagree on how income, education, health care, and
housing should be distributed.
Now, I must tell you that it is not in my best interests
nor is it in the interests of the people I serve that certain
people who call themselves religious benefit from the passage
of this bill. That is because it has been my experience that
people often use religion and race as an excuse to deny others
the income, education, health care, and housing and justice
that they covet for themselves. And that is what we define as
sin, the arrogance and self-seeking of many. Mr. Chairman, take
it from someone who knows: People who call themselves
religious, when it comes to their greed and opportunism, will
often talk east and walk west on matters of public policies.
They say one thing and do another. Jesus called such people
false prophets who come to you in sheep's clothing, and yet in
their hearts are ravenous wolves.
Ku Klux Klansmen are false prophets who use Christianity as
an excuse to deny black people and other minorities access to
those five things. Muslim extremists, like Osama bin Laden, are
false prophets who use Islam as an excuse to kill other people,
to deny them access to those five things, and in the process,
they distort Islam, and they blaspheme Allah. Jewish extremists
are false prophets who use Judaism as an excuse to take from
others what they have coveted for themselves. They all come up
with cute excuses for their ungodly actions, but they are not
correct. They may appear to be sincere, but they are sincerely
wrong.
The right thing for all Jews, all Christians, all Muslims,
and all people who are of good will in this country to do is
recorded in Micah, the Sixth chapter, and all agree with it
because it is in their literature: He hath shown thee, O man,
what is good; and what doth the Lord require of thee, but to do
three things, to do justice, and to love mercy, and to walk
humbly with thy God. Don't just talk the talk, walk the walk to
the polls.
Mr. Chairman, I know it is not in my interest nor the
people whom I serve that everybody who calls themselves
religious be able to do what I do in my pulpit. But like
Voltaire, I may disagree with them vehemently, but I will
defend to the death their right to be wrong and their right to
participate in an orderly effort that democracy afforced us to
translate what we believe into public policy and practice.
I support this because I must not be selfish and,
therefore, sinful. I must not demand for myself what I would
deny others. I believe that he who would save his life shall
lose it, and he that will lose his life for my sake will find
it. That is why I support this bill.
[The prepared statement of Reverend Fauntroy follows:]
Statement of the Hon. Reverend Walter E. Fauntroy, Pastor, New Bethel
Baptist Church, and Former Member of Congress
Chairman Houghton and members of committee, my name Walter E.
Fauntroy. I am in my forty-third (43rd) year as pastor of
the New Bethel Baptist Church here in our nation's capital. Over the
course of those years, I have had the privilege of being at the core of
nearly every major change in public policy in this country affecting
people of African descent.
In the decade of the 1960s I served as Director of the Washington
Bureau of Dr. Martin Luther King, Jr.'s Southern Christian Leadership
Conference. In that capacity I coordinated our activities for both the
Historic March on Washington in 1963 and the Selma-To-Montgomery Voting
Rights March of 1965. I was Dr. King's chief lobbyist for passage of
the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
In the decades of the 1970s and '80s I served as a member of this
august body as the District of Columbia's first Delegate to the U.S.
House of Representatives in 100 years. During my twenty year tenure as
a member of the House Banking, Finance, and Urban Affairs Committee, I
had the great privilege of being chairman of the subcommittee on
Domestic Monetary Policy and then the subcommittee on International
Development, Finance, Trade and Monetary Policy.
What I have learned as a pastor, civil rights activist and member
of congress over these years has led me to appear before you today in
support of H.R. 2357, the Houses of Worship Political Speech Protection
Act. In the five minutes allowed me, I want to share with you two
definitions of ``politics'' upon which I have acted over these years as
a pastor, as a civil rights activist and as a politician that inform my
decision to support this legislation.
The first definition is this: ``Politics is the means by which we
in a democracy translate what we believe into public policy and
practice;'' that is, we go to the polls to vote for people who, when
elected, promise to translate what we believe into public policy and
practice. That right to vote is so precious to me because, as an
African American, I am painfully aware how racist white voters in the
Southland, by denying my people the right to vote, were able to
translate into public policy and practice what they believed. They
believed that black people, for example, should not be allowed to drink
water from the same public fountains used by white people; and with
their votes, they translated that into public policy and practice.
A second definition of politics upon which I have always acted is
that ``Politics in the process by which we determine who gets how much
of what, when and where in five areas: income, education, healthcare,
housing and justice.'' In fact, during my twenty year tenure in this
congress, I became thoroughly conversant with our nation's fourteen
cabinet level agencies and their counterparts in the standing
committees of the U.S. House and Senate, agencies and committees that
determine who gets how much and what, when and where in agriculture, in
commerce, in labor and housing and health and human services, for
example. That's what I have learned as a politician.
Let me tell you what I have learned as a thoroughly trained pastor.
I have learned from the Prophet Isaiah that the basic tenet of my
Judeo-Christian-Muslim heritage is that we are all ``anointed of God to
declare good news to the poor, to bind up the broken hearted and to set
at liberty them that are bound'' (Isaiah 61:1). You can understand,
therefore, that as a citizen who has a right to vote to translate what
he believes into public policy and practice and as a man whose faith
dictates that he seek to provide ``the least of these'' access to
adequate income, education, healthcare, housing and justice, I never
have and I never will allow any one to deny me that right to vote my
beliefs at the polls. I have not and I will not allow any one deny me
my right to try to persuade as many fellow citizens as I can reach to
vote as I do.
There is, therefore, no election--local, state or national--where I
think that the plight of the ``least of these'' is at stake that I do
not endorse a candidate of my choice in an effort to influence the
members of my congregation and any one else who I think values my
opinion on matters of public policy. That is my right both as a citizen
and a man of faith, and I will defend that right even for those people
of faith with whom I vehemently disagree as to how income, education,
healthcare, housing and justice should be distributed in our society.
Now I must also tell you that it is not in my interest nor is it in
the interest of the people whom I serve that certain people who call
themselves ``religious'' benefit from the passage of HR 2357. That's
because it has been my experience that people often use religion and
race as excuses for denying to others the income, education,
healthcare, housing and justice that they covet for themselves. In our
Judeo-Christian-Muslim heritage we call that ``sin'' which, defined, is
the arrogance and self-seeking of man.
Mr. Chairman and members of the committee, take it from someone who
knows, people who call themselves religious, when it comes to their
greed and opportunism, will often talk East and walk West on you in the
arena of public policy. They say one thing and they do another. Jesus
called such people ``false prophets who come to you in sheep's
clothing, but inwardly they are ravening wolves'' (Matt. 7:15). Ku Klux
Klansmen are false prophets who use Christianity as an excuse to deny
black people access to income, education, healthcare, housing and
justice. Muslim extremists like Osama Bin Laden are false prophets who
use Islam as an excuse to kill other people to deny them access to
income, education, health care housing and justice. In so doing, they
distort Islam and blaspheme the name of Allah. Zionists extremist are
false prophets who use Judaism as an excuse to take from others what
they covet for themselves: income, education, healthcare, housing, and
justice.
They all come up with cute excuses for their ungodly actions but
they are not correct. They appear to be sincere but they are sincerely
wrong. The right thing for all Jews, all Christians and all Muslims to
do is recorded in their own holy writ in the words of Micah 6:8--``He
hath shown thee O man, what is good; and what doth the Lord require of
thee, but to do justly, and to love mercy, and to walk humbly with thy
God?''
So, Mr. Chairman, I know that it is not in my interest or that of
the people whom I serve that certain people who are self-centered
hypocrites when it comes to the basic tenets of their religions
exercise their right to be wrong. But like Voltaire, I may disagree
with them vehemently, but I will defend to the death their right to be
wrong and their right to participate in an orderly effort to
``translate what they believe into public policy and practice.'' I must
not be selfish and, therefore, sinful; I must not demand for myself
what I would deny others. I believe that he who would ``save his life,
shall lose it; and he that loses his life for my sake shall find
it.''(Matthew 10:39)
I support the passage of H.R. 2357. Thank you.
Chairman HOUGHTON. Thank you very much, Walter. Great to
have you here. Reverend Lynn?
STATEMENT OF REVEREND BARRY W. LYNN, EXECUTIVE DIRECTOR,
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Reverend LYNN. Thank you very much.
Mr. Chairman and Members of the Subcommittee, my name is
Barry Lynn. I serve as the Executive Director of Americans
United for Separation of Church and State. I am also an
ordained Minister in the United Church of Christ, and an
attorney, and I have had a long interest in the issues that we
are discussing here today.
America's policy of separating religion and government has
given us here in the United States more religious freedom than
any Nation in the history of the world. When it comes to the
relationship between houses of worship and politics, we had
struck, in our view, precisely the right balance, creating an
environment that works to the benefit of all religious
organizations, their Members, and our democracy. We change it
at our peril.
The bills before you would scrap a time-tested system and
substitute a reckless experiment in mixing religion with
partisan politics. Make no mistake, these bills are not about
free speech; instead, they would promote the corruption of the
church and the corruption of the political process.
No freedom of speech of any American pastor, priest, imam,
or rabbi is endangered today by the United States Tax Code.
Religious leaders are as free today as any time in American
history to expose moral evils, to propose ethical solutions,
and to hold our leaders to the highest standards. In fact, the
only thing that our tax laws prohibit is use of resources or
personnel of a tax-exempt group to promote the campaigns of
specific candidates for public office. Frankly, this is a small
price to pay for the enormous dual benefit of an organizational
tax exemption and the right of contributors to gain a tax
deduction for their contributions.
Pastors are not gagged, churches are not shuttered by the
fear of the IRS. This is a nonsensical caricature by those who
are trying to scare religious leaders by misrepresenting
current law.
So if these proposals are not about free speech, and
America's religious leaders already enjoy the right to speak
out on the moral issues of the day, then what precisely are
these bills about? Let me be blunt. I believe it is simple.
There are television preachers and special interest groups who
would like to turn America's churches into a powerful political
machine. They would also like to undermine the principles of
separation of church and State.
Lawyers for Pat Robertson are out here, including on this
panel, pushing this legislation. Dr. D. James Kennedy, also
here today to express support for the bill, has repeatedly said
that he believes church-State separation is, in his words, a
lie, and that he wants to reclaim America for Christ. If these
activists are politically successful, in part by passing these
bills, the consequences would be devastating for the Nation's
tradition of religious pluralism and genuine religious freedom.
For example, these bills would allow money to go straight
from the collection plate of a church to buying campaign bumper
stickers or attack ads for someone's favorite politician. That
is a vision that is to me as morally repugnant as it is
politically unhealthy.
Moreover, these bills would actually create an unlevel
playingfield in which religious groups get special rights to
endorse candidates while thousands of secular charities, from
the American Cancer Society to the Red Cross to the local
birdwatching group, are still denied that power. Such a special
privilege for religious groups over secular ones is, without
question, an unconstitutional promotion of religion under the
first amendment to the Constitution.
But the legislation does more. It opens a Pandora's box of
new opportunities for mischief through abuse of the Nation's
campaign finance system. Supporters of a candidate could make
tax-deductible contributions to a church, and the church could
then use an equivalent amount on behalf of that donor's
favorite candidate.
The motive could be crass, an effort to curry favor with
politicians for future gain, or it might well be quite noble, a
well-intentioned effort to fund those leaders who are deemed
morally superior. But frankly, either way, this amounts to
nothing short of clerical money-laundering, and it is wrong to
introduce it into this system.
According to a poll this year, 70 percent of Americans
disapprove of the idea of churches endorsing political
candidates, and little wonder. Most parishioners want the
church board to debate expenditures on aid to the homeless and
hungry in their communities, not wrangle over which politicians
will be favored with the grace of 5 percent or 10 percent of
the revenues from the collection plate. Few pastors themselves
even want to serve their flocks as both a spiritual leader and
a political boss.
The practical magnitude of these bills is staggering. They
would permit some denominations to spend literally $1 million a
year or more on electioneering. We should not try to add
churches to the dazzling array of other organizations that can
be formed to campaign for political leaders.
The moral authority of the church has always been highest
when it played no partisan favorites and spoke its truth to
government without fear of reprisal or the specter of special
privilege. A taint, a deep taint, grows on that prophetic voice
when there is even the appearance of buying favor with
political leaders by any mechanism, from a sermon endorsement
to a cash transfer.
Ultimately, these proposals to change Federal tax law offer
a solution to a problem that does not exist. These bills would
create a so-called ``benefit'' that America's religious
community does not need, does not want, and has not even
requested. I therefore urge this Subcommittee to reject both of
these proposals.
[The prepared statement of Reverend Lynn follows:]
Statement of Reverend Barry W. Lynn, Executive Director, Americans
United for Separation of Church and State
Mr. Chairman and Members of the Subcommittee On Oversight:
My name is Barry W. Lynn. I serve as executive director of
Americans United for Separation of Church and State, a 53-year-old
watchdog organization created to protect religious liberty. The
organization is concerned about protecting the twin guarantees of
religious freedom in the First Amendment: prohibiting governments from
encroaching on the free exercise of religion and prohibiting government
promotion of some religions over others or of religion over non-
religion. I am an ordained minister in the United Church of Christ as
well as an attorney.
I appear today in strong opposition to several proposals to allow
tax-exempt religious organizations to engage in partisan political
activities. In my view, both H.R. 2357 (``Houses of Worship Political
Speech Protection Act'') and H.R. 2931 (``Bright-Line Act'') run afoul
of sound public policy and the United States Constitution. Far from
merely clarifying the rights of religious institutions, these bills
would grant special rights to certain religious groups not given to
similarly situated secular groups and would deeply politicize America's
churches, synagogues, temples and mosques.
Current tax law exempts certain organizations from taxation,
including those organized and operated for religious purposes, provided
that they do not ``participate in, or intervene in (including the
publishing or distributing of statements), any political campaign on
behalf of (or in opposition to) any candidate for public office.'' 26
U.S.C. Sec. 501 (a), (c)(3) (1994). This levelheaded policy works
perfectly for all concerned: Tax-exempt religious institutions are not
used or manipulated for partisan political purposes, and religious
leaders remain free to speak out on moral and ethical issues of the
day.
This harmony would be dramatically altered by enactment of either
of the aforementioned bills. H.R. 2357 would allow institutions
described in section 508 (c)(1)(a) [``churches, integrated auxiliaries,
and conventions or association of churches''] to engage in partisan
activities so long as ``no substantial part'' of their activities would
constitute intervention in political campaigns. H.R. 2931 would permit
intervention in campaigns so long as the expenditures did not exceed
five percent of the organization's gross revenues for the year.
The prohibition against partisan political intervention which
exists today applies equally to both churches and other secular
charities that claim tax-exempt status. There is absolutely no Supreme
Court authority under either the ``free exercise of religion'' or
``free speech'' provisions of the First Amendment that even remotely
suggests that churches are entitled to exemption from tax law
requirements that apply to all similarly situated groups. Therefore,
both pieces of legislation raise important constitutional questions of
equal protection of the law and violation of the Establishment Clause,
that principle of constitutional jurisprudence that holds that
government cannot favor religion over non-religion.
Perhaps the closest analogy to the kind of policy embraced in the
proposals is the Supreme Court decision in Texas Monthly, Inc. v.
Bullock, 489 U.S. 1 (1989). There, the state of Texas had created an
exemption for sales tax on religious publications, including
periodicals and books containing sacred texts. The publishers of Texas
Monthly, a secular magazine, challenged this disparate treatment
favoring religion and prevailed. The Court noted: ``It is difficult to
view Texas' narrow exception as anything but state sponsorship of
religious belief. . .'' Id. at 15.
Accordingly, should either proposal before you be enacted, any non-
religious 501(c)(3) organization, still required to maintain a position
of no endorsement of candidates, would be able to allege that the
special treatment of religious groups violated the Establishment
Clause. Giving preferential treatment to churches, a status not
accorded the scores of other charitable, non-profit groups is a giant
step in the wrong direction.
Just one year after the Texas Monthly decision, the Supreme Court
made clear that a state can decline to exempt churches from a
generally-applicable sales tax, because religious activity is not
``being singled out for special and burdensome treatment.'' Jimmy
Swaggart Ministries v. California Board of Equalization, 493 U.S. 378
(1990). In Christian Echoes National Ministry v. United States, 470
F.2d 849 (10th Cir. 1972), cert. denied, 414 U.S. 864
(1973), the appeals court ruled that Section 501(c)(3)'s prohibition
against political activities may be applied to churches in the same
manner as to other charities. Indeed, an appeals court upheld the
revocation of tax exemption for a New York church's participation in a
political campaign to defeat Bill Clinton finding no significant burden
on the right to freely exercise the religious beliefs proscribed by the
faith. Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000).
Taken together, these cases demonstrate there is no serious
constitutional claim that taxing authorities must, or can, treat
religious groups differently from other charities.
The practical implications of these bills would be staggering.
Anywhere from 5% to 20% of a church's revenues could go for partisan
activities. There are many churches and related organizations with
multi-million dollar budgets. A typical so-called ``mega-church'' with
a $2 million budget under H.R. 2931 could contribute $100,000 to
partisan campaigns. Under H.R. 2357, that same church could send
$225,000 to favored politicians. * If the Southern Baptist Convention
or the Unification Church's entire budget was taken into account, such
entities could spend over $1 million dollars on electioneering.
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* Current law permits most charities (churches were omitted at
their request) to choose between not spending a ``substantial'' amount
of their revenues on lobbying or spending no more than 20% of their
first $500,000 in revenue and a declining percentage of additional
revenue up to a total expenditure of $1,000,000 on lobbying (the latter
is referred to as the ``[h] election''). The ``[h] election'' is often
referred to as a ``safe harbor'', a guarantee that a charity does not
risk its tax exemption if it spends no more than the articulated
limits. The risk of non-election is that the Internal Revenue Service
could reach its own decision on what constitutes an amount of lobbying
so ``substantial'' that it could lead to revocation of tax-exempt
status. See, for example, Haswell v. United States, 500 F.2d 1133 (Ct.
Cl. 1974)(allocation of 20.5% of total expenditures for influencing
legislation was ``substantial'', but that ``a percentage test is not
determinative of substantiality'' but is ``one measure of the relative
significance'' of an activity); Seasongood v. Commissioner of Internal
Revenue, 227F.2d 907 (6th Cir. 1955) (5% of organization's
time devoted to influencing legislation found not substantial). Under
H.R. 2357, a church could reasonably argue that 20% or less of
expenditures is no ``substantial''.
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It is also worth noting that the Congress passed, and President
Bush recently signed, a major overhaul of the campaign finance system.
Although some have questioned the constitutionality of that proposal,
enactment of the bills under consideration here would open another
enormous loophole in a system already viewed as Byzantine and
inequitable.
Houses of worship are awarded tax-exempt status because the
government assumes that their work is charitable and educational, not
political. To undo the restriction on church electioneering--allowing
religious groups to act as political operatives while maintaining their
tax-exempt status--creates a loophole that would allow contributors to
make tax-exempt contributions to a church with knowledge that the money
would benefit a favored candidate.
Throughout the nation, neither church leaders nor their
parishioners are clamoring for this bill. A recent survey by the Pew
Forum on Religion and Public Life found that 70 percent of respondents
said churches should not endorse political candidates, while only 22
percent backed church involvement in campaigns.
A closer look at the Pew Forum's results show that church
politicking was unpopular among all tested demographic groups. For
example, the report indicates that Catholics and mainline Protestants--
regardless of their level of religious commitment--disapproved of
church political endorsements by more than a three-to-one margin.
Similarly, pastors are not seeking the ``help'' these bills offer.
Most clergy now strictly adhere to the law as it is written regarding
candidate activity in their church and are not interested in turning
their religious institutions into cogs in someone's political machine.
This is a bad move for the church and for the integrity of the
political process.
Many persons with whom I have only rare agreement have nevertheless
expressed strong reservations on the proposals before you. Cal Thomas,
the most widely syndicated columnist in the country, wrote in
questioning these bills that ``more politicians would be free to come
to churches, taking time away from preaching about a kingdom not of
this world in favor of earthly salvation.''
Fox News Channel host Bill O'Reilly told me on air that he agreed
with me and informed Rep. Walter Jones several nights later that: ``I
don't want the churches involved in the political process.'' It is
little wonder. The moral authority of the church has always been
highest when it played no partisan favorites and spoke its truth to the
governing order without the fear of reprisal or the specter of special
privilege from the powerful.
That taint grows whenever there is even the appearance of
``buying'' favor with political figures with the financial resources of
the church: whether that is a sermon endorsement or an elaborate
transfer of cash from church treasury to a party or a candidate fund.
I am not naive enough to ignore the fact that these bills are
directly related to one of the highly visible projects of Americans
United for Separation of Church and State, an effort we call ``Project
Fair Play.'' Our program is a strictly non-partisan citizen effort
educate about existing legal strictures against partisan activity by
any institutions that are tax-exempt under Section 501(c)(3) of the
Internal Revenue Code.
``Project Fair Play'' consists of several activities. First, we
have produced, or have retained outside counsel to produce, a number of
legal and practical memoranda and pamphlets to let churches know of the
current law regarding participation in political activities. Although
these documents do warn of violating prohibitions against intervention
in campaigns, they also frequently detail the large number of perfectly
permissible ``political'' activities that churches can engage in that
inform community members about important issues and candidates seeking
political office, but that fall short of utilizing the resources of the
church to promote some specific candidates over others. For example, a
church may host a ``candidate forum'' in their facility so long as they
invite all candidates to appear. It is not the church's fault if some
choose not to do so. Churches can also discuss the vital moral issues
of the day and even endorse or oppose legislation, subject only to the
far less restrictive language regarding lobbying contained in the Tax
Code.
Second, though, when flagrant violations of the principle of non-
participation in political campaigns are brought to our attention, we
have (on 38 occasions) sent a letter to the Internal Revenue Service
detailing our reasons for believing that a church has violated the
provision prohibiting intervention in campaigns and should be
investigated and penalized where appropriate. These letters are
generally accompanied by additional evidence, from affidavits of church
members to newspaper accounts, to demonstrate why we believe the entity
has crossed a forbidden line. The activities we have reported have
ranged from a $44,000 church-sponsored advertisement in a major
newspaper urging the defeat of a Presidential candidate, distribution
of highly slanted ``voter guides'' by political party members in
church, direct pulpit endorsements, and collection of funds in Buddhist
temples. In a few cases, we know that the complaints have led to
enforcement actions by the Internal Revenue Service. However, unless an
institution challenges a penalty in court or discusses it in the media,
we do not know, nor are we entitled to know, the disposition of these
complaints.
According to the chief sponsor of H.R. 2357, Representative Walter
Jones of North Carolina, his legislation was born from anger over a
letter we sent to nearly 300,000 houses of worship nationwide in 2000
outlining federal tax law and urging that churches seek their own legal
counsel before passing out materials such as ``voters' guides'' of the
Christian Coalition. Apparently a copy of this letter went to ``a
fundamentalist Baptist minister'' in his district who was ``stunned--
that he could lose his status by just saying, `Bush is pro-life, Gore
is pro-choice.' '' (Actually, it is not clear that any church could
lose its tax exemption based on that statement alone.)
These comments obviously do not reflect the only reasons sponsors
have for wanting to enact legislation on this matter. However, the
comments about our work are based on two completely erroneous and
unsubstantiated claims that have been repeated in dozens of press
conferences and media appearances. I would like to set the record
straight.
First, these bills are not necessary because pastors feel unable to
speak to the moral issues of the day. It is a ``red herring'' of
considerable dimension to allege that pastors, priests, rabbis, or
imams are having their speech ``stifled.'' Regrettably, this is the
kind of misleading position staked out by Congressman Jones in a recent
letter to the Washington Times (2/24/2002): ``Houses of worship have
always, since the Founding, spoken out on issues of the day. Simply
because politicians also debate those issues--from abortion to the
death penalty--churches are now required to be quiet because to speak
out during an election cycle threatens government sanction and the loss
of tax exemption.'' In fact, speaking out on issues is virtually
unregulated by the Tax Code. No church has ever been penalized under
the lobbying restriction in the Code for making moral statements on any
topic. In fact, to suggest otherwise is to create the very chilling
effect our letters supposedly generate. It is quite easy to talk about
issues, stake out ethical positions, ask your congregation to seek out
political leaders who adhere to those positions--all without endorsing
a specific party or candidate with the resources of your church. The
one and only thing the valuable tax exemption requires you to give up
is the right to endorse candidates; it is no different from the
requirements that any 501(c)(3), religious or secular, would have to
follow. The church on the corner is no different from the Red Cross or
Americans United for Separation of Church and State.
The proponents of this legislation also continue to perpetuate the
myth that either Americans United or the Internal Revenue Service or
both of us is only concerned about the activities of conservative
churches and religious institutions. This is demonstrably false. Indeed
our first interest in this matter was the effort of the Reverend Jesse
Jackson to hold a ``Super Sunday'' fundraising effort for his 1988
presidential bid by having African-American congregations take up
collections for his primary bid right during church services. We
alerted the IRS to this planned activity and through the help of an
``open letter'' generated a spate of adverse activity that caused Mr.
Jackson to back off. In other significant cases, we have reported the
alleged fundraising in the Hsi Lai Buddhist Temple on behalf of the
Democratic Party and Al Gore, the Democratic Primary endorsement of the
candidacy of Al Gore over Bill Bradley by the Reverend Floyd Flake of
New York (which he conceded led to an agreement with the IRS not to
engage in similar activity in the future), and most recently the in-
church electioneering permitted on behalf of a Democratic candidate for
sheriff in Wake County, North Carolina.
Obviously, we have also pointed out the potentially unlawful
conduct of churches seeking to provide aid to Republican candidates,
including the pulpit endorsement immediately before an election of a
former Congresswoman from Idaho was, among other things, extolled as
``a prophet for our nation,'' the distribution of Christian Coalition
voter guides in Idaho by the chairman of the local Republican Party
(who was either very benevolent in passing out a wholly ``objective''
document or was seeking to promote the candidacies of the Republican
candidates all obviously favored in the ``voter guide''), and a pastor,
speaking on behalf of his Philadelphia congregation, who endorsed GOP
presidential candidate George W. Bush from his pulpit, while being
broadcast via satellite to the Republican National Convention.
Independent candidacies have also been the subject of complaints. We
submitted material regarding what we considered the endorsement of
Howard Philips of the U.S. Taxpayer Party in the presidential race of
1996 by a religious anti-abortion group called the American Life
League, as well as a Pennsylvania's church endorsement of specific
candidates in a non-partisan school board race.
When all is said and done, as a matter of tax policy and
constitutional law, I believe it will be a sad day in America when her
houses of worship begin to descend into the political fundraising
world. Of course, some argue that if the church is uneasy with partisan
politicking, it can just forego it. That may be easier said than done.
If parishioners see the church across the street doling out dollars for
politicians and then (quid pro quo or merely the appearance thereof)
getting money under programs like the president's ``faith based
initiative,'' there will be strong pressure on church leaders to craft
similar ``arrangements.'' Churchgoers should be able to assume that
their $20 bill in the collection plate will be used for the ministry
and not shunted off to attack ads or political bumper stickers. If not,
they might just let the collection plate pass by empty.
In all candor, the bills before you are unconstitutional,
unnecessary, and unhealthy for both the church and the political
process. I urge that they be rejected. Thank you for this opportunity
to be included in this hearing.
______
ADDENDUM
I am writing to expand on some of the statements in my written
testimony of May 14, 2002 concerning the interaction of Rep. Walter
Jones' H.R. 2357 and Rep. Phil Crane's H.R. 2931 with the campaign
finance laws, especially the Bipartisan Campaign Reform Act of 2002,
which will go into effect after the upcoming election cycle.
There are several ways in which the contributions of church
parishioners could be used for political activity. The most direct way
would be for a church to open a political action committee (PAC) bank
account for contributions, and follow relevant individual contribution
caps and FEC reporting requirements for PACs. When soliciting political
funds, the church would have to make clear to individual congregants
contributing to the collection plate that a specific portion of their
contribution will go to the PAC fund for political activity. The church
would not be able to simply transfer money from the general treasury to
the PAC bank account--the church must ensure that all PAC money came
from individual contributions, and not from the church bake sale or
spaghetti dinner. The church should also instruct congregants not to
treat contributions that may be used for political purposes as tax
deductible, because the IRS will likely treat these church PAC accounts
as Sec. 527 accounts, contributions to which cannot be tax deductible.
However, the church will retain its tax-exempt status for other
activities.
Allowing 501(c)(3) religious organizations to operate PAC
operations is just one of many ways that the Jones and Crane bills open
new loopholes in the nation's campaign finance system.
In addition to diverting collection plate funds to candidates, the
PAC funds of unincorporated houses of worship could be used for other
express advocacy activities, such as print and broadcast attack ads
against candidates sponsored by the church PAC account. And it is clear
that H.R. 2357 and H.R. 2931 would open the door to houses of worship
engaging in partisan political activity through slanted ``issue
advocacy'' advertisements. An example of an ``issue advocacy'' ad would
be a negative message targeted at Congressman X followed by a request
to ``call Congressman X'' and tell him you are outraged by his record.
In addition to print and broadcast advertisements, the Jones and Crane
bills would allow houses of worship to engage in direct mail, push
polling and voter guides with the same negative partisan political
message. However, assuming the new campaign finance law takes effect,
these messages may be restricted 30 days before a primary and 60 days
before a general election.
The bottom line is that the Jones and Crane bills would open
outrageous new loopholes in the campaign finance system. And more
disturbingly, H.R. 2357 and H.R. 2931 would be a corrupting influence
on our nation's houses of worship.
Chairman HOUGHTON. Thanks very much, Reverend Lynn. Dr.
Kennedy.
STATEMENT OF D. JAMES KENNEDY, PH.D., PRESIDENT, CORAL RIDGE
MINISTRIES, FORT LAUDERDALE, FLORIDA
Reverend KENNEDY. Thank you. Mr. Chairman, and ladies and
gentlemen, it is a pleasure for me to be here to have an
opportunity to speak to you, especially after what I have just
been listening to. I hardly recognized the Nation that we are
talking about in a previous discussion. It is certainly nothing
that I would be in favor of.
May we simply remind ourselves of the history of this
matter. Up until July 2, 1954, when this Nation and its
churches had been active for 334 years with the kind of freedom
that this bill would grant, it did not create the kind of
monstrosity that we just heard about, nor do I believe it would
in the future.
What is new and what is radical is this bill, which, as you
know, was introduced on the floor on July 2 as Members were
leaving for summer by LBJ, by Lyndon Baines Johnson, who was
very upset that a couple of anti-Communist groups in Texas had
been giving him a very difficult time in the election, and he
decided to do what often has been decided to be done by people
in power that did not like the things that had been said about
them. He decided to silence them, so he added on the floor,
without debate, the amendment that took away from churches and
ministers what they had enjoyed for 334 years; that is, the
right to say whatever they felt their consciences and the
Scriptures were teaching them, and that they did not need to be
afraid of what the government would do if they said certain
things that the government disallowed.
I have traveled all through this Nation. I have talked to
thousands, over 100,000 ministers on this subject. I have
noticed several things. One of them, if you ask any 100 of them
what this says, we probably would get almost 100 different
answers. It is very confusing. I think that was seen when we
heard the experts talk about it earlier today. It is not
something that is easily understood, and I have talked to many
ministers who would not say anything on any moral issue or any
other issue that might be perceived as being unacceptable
because they were afraid that the IRS would come down upon
them, open a new file on their church, and that they would
experience repercussions because of that. Therefore, they have
abstained from saying anything.
Most people in America today believe that anything that is
legal is right, and anything that is illegal by definition is
wrong. Therefore, they feel that it is wrong to speak on these
issues today, especially if there is any kind of election that
is forthcoming in the near future, because they believe that
this is illegal.
They are not sure what it is that is illegal, because it
is, indeed, confusing and obscure, in many aspects. And when
you question them about that, it is very clear that they do not
know exactly what is or what is not legal for them to say and
when they can say it.
I think this needs to be done away with, and I have talked,
again, to a great many Christians who believe that their
pastors do not say anything about these issues simply because
of the fact that they are afraid of the consequences. This is
what the people believe is the motivation behind that, rightly
or wrongly, but I have heard this said numbers of times.
I believe that what we have in this country here is
something that has contributed in the freedom we had for 334
years, has contributed markedly to the moral and spiritual
advantage of this country, and if we selectively silence those
who have the greatest vested interest in trying to maintain the
moral law of God, we are inevitably going to see a decline in
the moral status of the Nation. And what have we seen in the
last 48 years other than just precisely that, indeed?
And, therefore, I think that this unfair and ill-understood
concept needs to be abandoned, and we should go back not to
some advanced radical new view that somebody might come up with
now, but rather we should go back to what the founders of this
country and Americans in general for over 300 years believed
was the proper thing to do.
It was said by a great historian in the 19th century that
the moral force of this country came from the Puritan pulpits
of New England, and without that, we probably never would even
have obtained our freedom. And what would the IRS have to say
about things like what Martin Luther King did, or those that
fought against slavery? Would these be construed to be
political matters if they were spoken of shortly before an
election? I believe they would. What would have been the result
in our Nation if that were true?
I believe, ladies and gentlemen, that it is time for us to
get rid of this inequitable, unfair, and ambiguous law that was
attached without any debate. I thank God that 48 years later,
finally, the Congress is getting that debate.
Thank you for your time.
[The prepared statement of Dr. Kennedy follows:]
Statement of D. James Kennedy, Ph.D., President, Coral Ridge
Ministries, Fort Lauderdale, Florida
Good afternoon, Mr. Chairman. Thank you for the opportunity to be
here. On behalf of the thousands of people who have signed petitions
asking Congress to pass the Houses of Worship Political Speech
Protections Act--some of which you see stacked on the table before me--
I am pleased to have this opportunity to address the subcommittee.
In the summer of 1954, Lyndon B. Johnson had a problem: What to do
about powerful anti-Communist organizations threatening his Senate
reelection. The answer proved amazingly simple. Just like Congress this
past spring, Johnson figured out that the best way to deal with these
``special interests'' was to silence them.
So, on July 2, 1954, as the Senate considered a major tax code
revision, Johnson offered a floor amendment to ban all nonprofit
501(C)(3) groups from engaging in political activity. Without hearings
or public debate, his amendment passed the Senate on a voice vote.
Johnson's revision to the federal tax code was targeted at the
nonprofit groups contesting his seat, but churches were caught up in
the ban. In just minutes and without debate, churches, for reasons that
had nothing to do with the separation of church and state, were
stripped of their liberty to participate in America's political life.
That will change if ``The Houses of Worship Political Speech
Protection Act,'' introduced by Rep. Walter Jones, and cosponsored by
114 other Members, becomes law. Jones' bill will reverse Johnson's ban
and return the protection of the First Amendment to America's churches,
synagogues, and mosques. Today, the hearing that never took place 48
years ago is convening as the House Ways and Means Oversight
Subcommittee considers this bill.
This legislation is a vitally important step in reversing a long-
standing injustice whereby free speech seems to be protected everywhere
except in the pulpits of our churches and other houses of worship. It
will restore to churches a freedom and role that dates to America's
infancy. Nineteenth century historian John Wingate Thornton said that
``in a very great degree, To the pulpit, the PURITAN Pulpit, we owe the
moral force which won our independence.''
The British would agree. Disgusted at the black-robed clergy's
prominent role in stirring the colonies to fight, the Redcoats called
them the ``Black Regiment.'' And Prime Minister Horace Walpole declared
in Parliament that ``Cousin America has run off with a Presbyterian
parson.'' Walpole was most likely referring to John Witherspoon, who
was a Presbyterian minister, president of Princeton and a signer of the
Declaration of Independence. Witherspoon, who was accused of turning
his college into a ``seminary of sedition,'' was the most important
``political parson'' of the Revolutionary period, according to the
Library of Congress.
During the Revolutionary era, it was graduates of Yale and Harvard,
serving in churches across New England, who laid out the theology of
resistance that made war with Britain inevitable. One of the most
provocative and influential sermons preached was Jonathan Mayhew's 1750
``Discourse Concerning Unlimited Submission and Non-Resistance to the
Higher Powers.'' His message, quickly printed and read on both sides of
the Atlantic, justified political and military resistance to tyrants
and has been called ``The Morning Gun of the American Revolution.''
When British General Thomas Gage attempted to silence the
incendiary messages being preached by New England's Black Regiment, one
clergyman, William Gordon, declared in defiance that ``There are
special times and seasons when [the minister] may treat of politics.''
To do otherwise was not possible for New England's ministers, who had
been faithfully applying God's Word to every area of life since the
first generation arrived in Massachusetts.
In the mid-nineteenth century, evangelical Christians were primary
agents in shaping American political culture, according to Richard
Carwardine, author of Evangelicals and Politics in Antebellum America.
``Political sermons, triumphalist and doom laden, redolent with
biblical imagery and theological terminology, were a feature of the
age,'' he writes.
For example, one minister distilled the question before voters in
the 1856 election as a contest pitting ``truth and falsehood, liberty
and tyranny, light and darkness, holiness and sin--the two great armies
of the battlefield of the universe, each contending for victory.''
Language like that today might earn a visit from the Internal
Revenue Service. It did in 1992 after the Church at Pierce Creek in
Vestal, New York, placed a newspaper ad warning Christians not to vote
for Bill Clinton for president. Such a vote, the ad warned in rhetoric
echoing 1856, would be to commit a sin. The IRS took notice and three
years later revoked the church's tax exemption.
Aggressive toward Pierce Creek, the IRS has, at other times, looked
the other way. In 1994, for example, New York governor Mario Cuomo
campaigned for reelection on a Sunday morning at the Bethel African
Methodist Episcopal Church in Harlem. ``Cuomo was rewarded with a long,
loud round of applause and an unequivocal endorsement from the
pastor,'' according to a Newsday report. The American Center for Law
and Justice, which represented the Church at Pierce Creek, uncovered
evidence at trial that the IRS knew of more than 500 instances where
candidates appeared before churches, as happened with Gov. Cuomo and
Bethel A.M.E., but took no action to revoke these church's tax-exempt
status.
The unequal enforcement of the existing law is just one of several
reasons why scrapping the political activity ban altogether is a good
idea. The political activity restriction is a blatant violation of the
First Amendment, is vague and burdensome, and marginalizes churches at
a time when America most needs a moral compass.
The First Amendment states that ``Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech--.'' Yet that is
exactly what the Congress has done by silencing churches.
Nor is the political activity ban easy to obey. Not just
endorsements, but voter education activities, such as voter guides that
compare office-seekers on issues, may violate the ban if they are
perceived as partisan. Even addressing moral concerns, such as
abortion, from the pulpit during an election campaign may violate the
IRS rule if abortion, for example, is under debate in the campaign.
With so much uncertainty and so much at risk, silence is,
regrettably, the only option for the minister who wants to ensure that
the IRS does not open a file on his church. But when Caesar's demand
for silence confronts the message of God's Word, ministers are forced
into hard choices. That's what happened in Nazi Germany a generation
ago. Many pastors submitted, and were silent. Others were not, and paid
the price.
If, as has been asserted, we owe our liberties to the ``moral
force'' of the pulpit, the censorship of that voice--for reasons that
have everything to do with partisan politics and nothing to do with the
separation of church and state--is a monumental mistake that should be
quickly corrected. In a culture like ours, which sometimes seems on
moral life support, the voice of the Church and her message of
reconciliation, virtue, and hope must not be silenced.
Chairman HOUGHTON. Thank you, Dr. Kennedy. Ms. Girton-
Mitchell.
STATEMENT OF BRENDA GIRTON-MITCHELL, ASSOCIATE GENERAL
SECRETARY FOR PUBLIC POLICY, AND DIRECTOR, WASHINGTON OFFICE,
NATIONAL COUNCIL OF CHURCHES OF CHRIST IN THE USA
Ms. GIRTON-MITCHELL. Thank you, Mr. Chairman and Members of
the Subcommittee. My name is Brenda Girton-Mitchell. I am
Associate General Secretary for Public Policy and Director of
the Washington office for the National Council of Churches of
Christ in the USA. For the record, I am also the Chair of the
Board of trustees of the Metropolitan Baptist Church here in
the Nation's Capital, a divinity student at Wesley Theological
Seminary, and a former staff of the other body.
Thank you for the opportunity to present testimony on
behalf of the National Council of Churches, which is the
Nation's leading organization in the movement for Christian
unity. The council brings together 36 Protestant, Anglican, and
Orthodox communions, which have an average Membership of some
50 million U.S. Christians and more than 140,000 congregations
in communities across the Nation. A list of our Member
communions/denominations is attached for the record.
While I cannot presume to speak for all of those
individuals I represent, I do speak for the general assembly of
the National Council of Churches. The assembly is a
representative body of some 270 persons chosen by the Member
communions, which sets policy for the council and commends
policy to the churches.
Since our founding in 1950, the council has a long and
proud record of witnessing for the religious freedom of all
Americans. My predecessors on the council staff have often
found themselves where I find myself today, testifying before a
congressional Committee regarding our deep conviction about the
religious and civil liberties that we and all Americans
treasure.
We are not bashful about speaking out on public policy,
because we are bound by our sense of mission and our obedience
to God. God requires us to speak out on issues that are
designed to help the common good. We welcomed Dr. Martin Luther
King as our keynote speaker to the council in 1957. We sent a
youth director by the name of Andrew Young to work with Dr.
King, and he later became a Member of this body. We and our
Members have preached, written, marched, applauded, protested,
and even prayed for Congress and for legislation, and have
found that this current legal system serves us well.
It is against this backdrop of a proud heritage and with a
continuing concern for religious liberty that I come to you
today to say that while H.R. 2357 and H.R. 2931 are purported
to protect the political speech of churches, they are, in fact,
unnecessary, they are unwise, and they are unwanted by our
Member communions of the National Council of Churches and many
other faith groups that have been represented today.
These bills are unnecessary because the views of the church
have not been muzzled. Houses of worship already enjoy the
right and the responsibility to speak out on any and all
political issues. The system is not broken. We believe that
separation of church and State, which has served our Nation so
well for more than two centuries, applies to the institutions
of church and State. However, the separation of church and
State does not mean that religion and politics will never
intersect. Everything that affects the well-being of human
beings is of direct interest to churches, and churches are
compelled to proclaim what they believe to be right and moral
forces for this whole society, not just for the church and its
Members.
My pastor often says, for a religion to truly be relevant,
a preacher must come to the pulpit with his Bible, his or her
Bible in one hand, and the newspaper in the other. We know what
we are called to do as we heed the words of Amos: to establish
justice in the gate.
This legislation is unwise because the measures in these
bills would corrupt our prophetic voices. Pastors know what
their callings require and are free to speak on any issue.
Churches are already allowed to engage in citizen education,
voter registration, nonpartisan political forums. However, the
National Council of Churches believes that to allow churches to
explicitly endorse and support political candidates crosses the
line that has served us well and puts us in dangerous
territory.
The churches could not effectively play this role if they
were to become enmeshed in partisan politics. By encouraging
churches to do so, these bills pose a great threat to the free
and prophetic voice of churches. A church that backs a
particular candidate for office and that promotes one political
party over another has forfeited the critical distance that
allows the church to critique the stands taken by the candidate
and the party.
This legislation is unwanted. It threatens the church in
ways that have been noted today. Allowing churches to use tax-
deductible dollars to support or oppose candidates for public
office often will damage our system of government in yet
another way. We are deeply concerned that, if enacted, these
bills will undermine the progress we have made as a nation in
the area of campaign finance reform. The NCC strongly supports
campaign finance reform as a way to level the playingfield,
maintain fairness, and build confidence in our political
system.
In closing, I would like to share a quote with you from our
former counsel for religious liberty, the Reverend Oliver
Thomas, who was trained as a Baptist Minister and a lawyer. The
wisdom he shared with the congregation sums up many of our
objections to these bills. He said, and I quote, ``even if
there were no prohibition on electioneering in the Tax Code,
churches would do well to avoid such partisan political
activity. Rarely, if ever, can a particular candidate or party
be identified as God's choice. The misguided use of Christ's
church for secular and political purposes not only creates
dissension within the household of faith, but also, inevitably,
diminishes the churches' witness and credibility on moral
concerns. In most cases, good theology and good tax advice go
hand in hand.''
Thank you.
[The prepared statement of Ms. Girton-Mitchell follows:]
STATEMENT OF BRENDA GIRTON-MITCHELL, ASSOCIATE GENERAL SECRETARY FOR
PUBLIC POLICY, AND DIRECTOR, WASHINGTON OFFICE, NATIONAL COUNCIL OF THE
CHURCHES OF CHRIST IN THE USA
My name is Brenda Girton-Mitchell. I am an Associate General
Secretary for Public Policy and Director, of the Washington Office
National Council of the Churches of Christ in the USA and Director of
the Council's Washington Office. For the record I am also Chair of the
Board of Trustees of the Metropolitan Baptist Church, a divinity
student at Wesley Theological Seminary and a former staff in ``the
other body.''
I thank you for this opportunity to present testimony on behalf of
the National Council of Churches, which is the nation's leading
organization in the movement for Christian unity. The Council brings
together 36 Protestant, Anglican and Orthodox communions, which have an
aggregate membership of some 50 million U.S. Christians in more than
140,000 congregations in communities across the nation. (A list of our
member communions is attached.)
While I cannot presume to speak for all of those individuals, I do
speak for the General Assembly of the National Council of Churches. The
Assembly is a representative body of some 270 persons chosen by the
member communions, which sets policy for the Council and commends
policy to the churches.
The National Council of Churches has a long and proud record of
witnessing for religious freedom of all Americans. Since our founding
in 1950, we have filed countless friend-of-the-court briefs in cases
where important principles of religious liberty were at stake. We have
helped to convene faith-based coalitions for religious liberty that
were so large and so diverse that practically the only thing its
participants had in common was a dedication to preserving our religious
freedoms. And my predecessors on the Council's staff have often found
themselves where I am today--testifying before a congressional
committee regarding our deep convictions about the religious and civil
liberties that we and all Americans treasure.
Nor are we bashful about speaking out on public policy. We welcomed
Dr. Martin Luther King, Jr. as our keynote speaker in 1957. We sent our
Youth Director, a young minister named Rev. Andrew Young to work with
Dr. King in 1961. We and our members have preached, written, marched,
applauded, protested and above all prayed for Congress and for
legislation and have found the current legal structure serves us
perfectly well.
Summary
It is against the backdrop of this proud heritage and with a
continuing concern for religious liberty that I come before you today.
I come to say that while HR 2357 and HR 2931 are purported to protect
the political speech of churches, they are in fact unnecessary, they
are unwise, and they are unwanted by the member denominations of the
National Council of Churches and by many other faith groups.
Unnecessary
The full and free participation of the nation's churches in public
policy debates both before and after 1954--the year that provisions of
the tax code were adopted prohibiting churches from taking part in
partisan political activity demonstrates that these bills are
unnecessary. The views of churches have not been muzzled, as some have
claimed; houses of worship already enjoy the right and the
responsibility to speak on any and all political issues. The system is
not broke.
Put another way, the National Council of Churches holds that
separation of church and state, which has served our nation so well for
more than two centuries, applies to the institutions of church and
state. However, separation of church and state does not mean that
religion and politics will never intersect. In fact, churches
contribute much to the moral thinking and public policy in our nation
and that role has been widely valued and is likely to grow.
Many congregations belonging to our member denominations have
opposed official government policies and actions that they believe are
harmful, and we have not feared reprisals. Many of these congregations
have vigorously advocated for policies that in their view will make for
peace and justice and they have not shied away from controversial
subjects. Indeed, churches have weighed in on issues of war and peace,
health care, the rights of women, Civil Rights and most of the hottest
issues that have come before this body. In some cases, our advocacy has
enjoyed a measure of success. In other cases our views have not
prevailed, but we have never been prevented from advancing our views.
Unwise
Pastors can use the church as a bully pulpit on any issue and the
law already allows churches to devote a portion of their budget to
advocacy, and to engage in citizen education, voter registration and
non-partisan political forums, the ability to speak out, debate and
express differing opinions is an essential part of the freedom that we
have as Americans. To allow churches to explicitly endorse and support
political candidates, however, crosses a line that has served us well
and puts us in dangerous territory.
I can vouch for the extent and vitality of church activity on
public policy issues from my vantage point as director for the
Washington Office of the National Council of Churches. My office works
closely with the Washington staff of our member denominations, with
state and local ecumenical and interfaith organizations nationwide and
with congregations across the country. The range of issues that we have
tackled over the course of 52 years is extraordinarily wide, and the
passion with which churches approach these issues is extraordinarily
deep.
For half a century we have brought an ethical and moral perspective
to the great issues of the day, from civil rights to the war in
Vietnam, from international debt to domestic welfare legislation, from
campaign finance reform to gun violence and everything in between. To
say that churches have been muzzled in the political arena is simply
not true. Every day, churches across the nation generate an abundance
of evidence that speaks to their role in holding government accountable
and in publicly advancing their vision of the common good--in the
pulpit, in other communications and through education and advocacy on
public issues.
But churches could not effectively play this role if they were to
become enmeshed in partisan politics. By encouraging churches to do so,
HR 2357 and HR 2931 actually pose a great threat to the free and
prophetic voice of the churches. A church that backs a particular
candidate for office and that promotes one political party has
forfeited the critical distance that allows the church to critique the
stands taken by that candidate or that party. The measures in these
bills would corrupt our prophetic voices.
Furthermore, churches that back a political candidate run the risk
that their choice for office might very well claim divine sanction for
his or her party and its stances--thus jeopardizing the credibility of
religious voices. The church must speak to worldly issues from the deep
places of faith, but must not lend the voice of faith to temporal
interests.
Unwanted
The proposed legislation threatens churches in the ways I have
noted and it also poses risks to the wider society. Legislation that in
essence allows churches to become integral parts of political parties
and to engage in the heat of political campaigns opens the door to the
kind of religious strife that has devastated other countries--from
Ireland to Indonesia and from Benares to Beirut--strife from which our
nation largely has been spared by the wisdom of our country's founders
and the continuing vigilance of Congress. As the United States becomes
ever more religiously diverse, the possible permutations for such
conflict also increase.
Allowing churches to use tax-deductible dollars to support or
oppose candidates for public office damages our system of government in
yet another way. We are deeply concerned that, if enacted, these bills
will undermine the progress that we have made as a nation in the area
of campaign finance reform. The NCC strongly supports campaign finance
reform as a way to level the political playing field, maintaining
fairness and building confidence in our political system. As gifts to
churches are tax deductible and gifts to political parties and
candidates are not, how fair is it then to allow political partisans to
channel support for their candidates through churches? We say, not fair
at all--to churches or to taxpayers.
For all these reasons, the National Council of Churches, along with
many other faith groups from Baptists to Buddhists, Jews to Quakers,
Methodists to Presbyterians etc., views HR 2357 and 2931 as ethical
liabilities and sees no advantage whatsoever for our society or our
churches. The proposed legislation would inevitably cause internal
dissension among congregations, and tear our communities of faith
apart.
Our stance, based on longstanding policy voted by our member
communions, is also supported by recent opinion polls that once again
lift up the common sense of the American public. The Pew Research
Center for the People and the Press and the Pew Forum on Religion and
Public Life found that 70 percent of Americans feel that houses of
worship should not favor one candidate over another during political
elections. Another poll, conducted by Gallup and the Interfaith
Alliance Foundation, canvassed the clergy and found that a full 77
percent of America's clergy are opposed to their fellow clergy
endorsing political candidates.
I want to conclude this testimony with a quotation on this subject
from our former counsel for religious liberty, the Rev. Oliver Thomas,
who was trained both as a Baptist minister and a lawyer. The wisdom
that he shared with congregations sums up many of our objections to HR
2357 and H.R. 2931 and I share his words with you now. Mr. Thomas said,
``Even if there were no prohibition on electioneering in the tax code,
churches would do well to avoid such partisan political activity.
Rarely, if ever, can a particular candidate or party be identified as
God's choice. The misguided use of Christ's church for secular
political purposes not only creates dissension within the household of
faith but also inevitably diminishes the churches' witness and
credibility on moral concerns.--In most cases, good theology and good
tax advice go hand in hand.''
______
Member Communions of the National Council of Churches
African Methodist Episcopal Church
African Methodist Episcopal Zion Church
Alliance of Baptists
American Baptist Churches in the USA
The Antiochian Orthodox Christian Archdiocese of North
America
Armenian Church of America
Christian Church (Disciples of Christ)
Christian Methodist Episcopal Church
Church of the Brethren
Coptic Orthodox Church in North America
The Episcopal Church
Evangelical Lutheran Church in America
Friends United Meeting
Greek Orthodox Archdiocese of America
Hungarian Reformed Church in America
International Council of Community Churches
Korean Presbyterian Church in America (General Assembly of
the)
Malankara Orthodox Syrian Church
Mar Thoma Syrian Church of India
Moravian Church in America (Northern Province, Southern
Province)
National Baptist Convention of America, Inc.
National Baptist Convention, USA, Inc.
National Missionary Baptist Convention of America
Orthodox Church in America
Patriarchal Parishes of the Russian Orthodox Church in the
USA
Philadelphia Yearly Meeting of the Religious Society of
Friends
Polish National Catholic Church of America
Presbyterian Church (U.S.A.)
Progressive National Baptist Convention, Inc.
Reformed Church in America
Serbian Orthodox Church in the USA and Canada
The Swedenborgian Church
Syrian Orthodox Church of Antioch
Ukrainian Orthodox Church of America
United Church of Christ
The United Methodist Church
Chairman HOUGHTON. Thank you very much, Ms. Girton-
Mitchell. Mr. Coyne, would you like to inquire?
Mr. COYNE. Thank you, Mr. Chairman.
Dr. Kennedy, Mr. Miller earlier in the other panel
testified that there already is a vehicle by which religious
organizations can channel money into political activities by
forming a section 501(c)(4), and I wondered if you took
advantage of that particular path.
Reverend KENNEDY. I am sorry, you wonder if I could----
Mr. COYNE. I wonder if you are currently taking advantage
of that provision in the IRS Code?
Reverend KENNEDY. Yes, sir. At one of our ministries, we
are.
Mr. COYNE. So why, then, is it necessary to channel money
or support legislation that would channel money from the
collection plate into political activities when you have this
section 501(c)(4) option?
Reverend KENNEDY. Because actually this bill does not
really address any other religious organizations, but simply
houses of worship. This other ministry I am referring to is not
a church. It is not a house of worship, so it really has
nothing to do with this.
Mr. COYNE. Thank you.
Chairman HOUGHTON. Mr. Lewis?
Mr. LEWIS. Thank you very much, Mr. Chairman.
Mr. Chairman, I want to thank you for inviting the
witnesses to be here, and I want to thank all of the witnesses
for appearing.
I don't know exactly where to start, but I have noticed
certain names and church groups and organizations have been
thrown around. I don't know where to start, but let's see.
Mr. May, in the beginning you made the point that the
church should be allowed to take care of the sick, feed the
hungry, clothe the naked, visit those in prison, and maybe, Mr.
Fauntroy went on to say to others, to preach the good news.
There is nothing that prevents the church from doing any of
these things, is there?
Mr. MAY. There is nothing that says they cannot feed the
hungry and clothe the naked. What happens, however, is that a
minister may believe, for the same reason he is called to feed
the hungry and clothe the naked, that he needs to speak out on
an issue, as Mr. Fauntroy has already indicated he has done his
whole life, because it is a matter of conviction and justice.
In those instances, they are frozen off of the field, because
if they do so, they compromise their ability to, in fact,
clothe the naked and feed the hungry.
Mr. LEWIS. Reverend Fauntroy, am I missing something here?
Tell me. Help me out, here. I have a list of Members of the
National Council of Churches, and almost every major Protestant
denomination, Methodist, Baptist, Orthodox Christian, Christian
Methodist Episcopal, CME, Church of the Brethren, the Baptists,
Presbyterian, all types, oppose this legislation.
Now, your church is a Member of the National Council of
Churches, right?
Reverend FAUNTROY. That is right.
Mr. LEWIS. In the Baptist tradition we believe in a
democracy, but how did you break with the National Council of
Churches? How did you break with the national Baptists or the
progressive Baptists?
Reverend FAUNTROY. I break with all of them on the basis of
the fact that I am an experienced Pastor who heads a house of
worship.
Mr. LEWIS. Are you saying these other religious leaders are
not experienced as pastors?
Reverend FAUNTROY. You said, break with the body. I would
say, with my church. I am an experienced Pastor, and I am an
experienced politician. I know that politics is about who gets
how much of what, when, and where in five areas. For 20 years I
watched and participated with this Congress in the decision as
to who got how much of what of the Commerce budget of the U.S.
Department of Health and Human Services, and so forth. So that
is one reason I speak, out of the authority of my experience as
Pastor.
Second, I beg to differ with some here who stated, and if I
am incorrect, help me to understand this, that this bill would
authorize churches out of their budgets to pay staff for
political campaigns. Help me out, somebody.
Mr. MAY. In fact, no. I think I stated and my testimony
outlined for you where in the Federal campaign laws this
activity is specifically precluded now, whether this bill ever
gets out of Committee or not.
Reverend FAUNTROY. All right. Second, someone has suggested
that a person may make a tax-deductible contribution to the
church to free up money to carry out its budget
responsibilities. In 43 years of ministry, I have thought that
it has always been unlawful for people to designate where the
money they give to the church goes. Our church and most
churches I know develop a budget to carry out the worship and
service ministries.
I must tell you as a Minister and Pastor of a church, I did
not dare ask the church to put my campaign in the budget. But I
will tell you one thing, when the Tuesday before the Sunday
came, when politicians show up at a place where they know they
have motivated people, I made it clear that having listened to
all the candidates and assessed the issues as they affect
income in our neighborhood, education for our children, health
care for our sick, housing, and justice, that I recommend to
you that you vote for this person or that. If you had shown up
in the sixties on that, the seventies, eighties, or now, and
put me in jail, I would go to jail on that.
All I am saying is, and I said at the end, that I recognize
that people who talk east and walk west on income, education,
health care, and housing for the least of these may use this
idea that we cannot speak, but they ought to be able to use it
under the kinds of fairness and equity that I think exists now.
It does not include some rich person trying to support a
politician who is going to cut the cake of the income,
education, housing for his people and to the exclusion of the
least of these; who can give his money and have it covered like
that, no. When Members contributed to my campaigns, they had to
go through the usual process.
Mr. LEWIS. Mr. Chairman, may I have another moment or so,
since the witness used so much of my time?
Reverend FAUNTROY. Please forgive me, Congressman Lewis.
Mr. LEWIS. Let me say, Congressman Fauntroy, I appreciate
the contribution you have made to the cause of civil rights and
the religious community. I appreciate it very much.
But I wonder whether Dr. Gaddy or Reverend Lynn, Ms.
Girton-Mitchell, would have something to say about the need to
plant this strong, solid wall, the separation of church and
State.
I want to make another little point here, Mr. Chairman. We
could be dealing with some other issues here in this Congress.
I know this is dealing with political activities coming to the
churches. Many of these big churches are competing with Wal-
Mart and K-Mart. You are not only engaged in political
activity, but some of you in certain communities around the
country, certain churches, are known as the Republican church,
a Democratic church. It is known. But in some places you are
selling books, tapes, T-shirts, the Bible, and everything. I
know we are not dealing with that today, we are dealing with
political activity.
Some of you have mentioned Martin Luther King, Jr. I knew
him; he was a friend of mine. He was my leader. I first met him
in 1958 when I was 18 years old. He never, to my knowledge,
never endorsed a political candidate. You can preach the good
news and tell the story, but you cannot use the church as a
political platform. I think that is in violation of the law.
Dr. GADDY. Reverend Lynn? Ms. Girton-Mitchell?
Reverend GADDY. Congressman Lewis, thank you very much for
the observation. I just have two points to make quickly for the
sake of time.
I must live in a different world from that of Dr. Kennedy.
I also have traveled the Nation. I also have talked to lots of
ministers. I have never met a minister worth his or her salt
that was refusing to talk about moral issues. I don't know how
one ministers without talking about moral issues.
The legislation that we are talking about today does not
discourage talking about moral issues. It does not prohibit
that. It does prohibit the endorsement of a candidate for
political office.
I have admired the ministry of Walter Fauntroy for a long
time, I once, long ago, asked him to speak to a session that he
probably does not remember now. But instead of pursuing the
proclamation of good news in the five arenas that he has talked
about so eloquently by endorsing a candidate for office from
the pulpit, I think it is much more in order to encourage the
people in the congregation to think out of their orientation to
the good news, and to work in both political parties and among
Independents to accomplish the goals.
I don't ever want to live in a nation that has come to
identify political integrity by a spiritual definition, or that
defines spiritual authenticity by a political identification.
Reverend LYNN. If I might add to that, and to clarify the
record on this important issue about whether this allows the
transfer of funds directly from a religious institution, a
church or an association of churches, all those organizations
covered by the Tax Code. Congressman Crane's bill is called the
Bright-Line Act because he wants to permit up to 5 percent of
the revenues of a church to be utilized for these purposes.
That is more than a casual comment, that is an extraordinary
amount, a large amount from a megachurch with a budget of $2
million or $3 million which, as Congressman Lewis points out,
exist all over these the United States. So this is not just a
comment here or there that we are talking about, but the direct
ability of organizations to transfer from the collection plate,
literally or figuratively, hundreds of thousands of dollars for
the benefit of political persons that they believe, rightly or
wrongly, for the best of reasons or the worst of reasons, will
somehow move along their agenda.
I think that is absolutely the most dangerous, retrograde
direction we can go when we think about both the integrity of
the church and the integrity of the political process, which we
are all concerned about cleaning up on a day-to-day basis.
Chairman HOUGHTON. We have some other questioners here.
Mr. Foley.
Mr. FOLEY. Thank you very much.
Mr. Lynn, you advocate for, obviously, separation of church
and State. Do you quarrel with what is, in essence, a Federal
subsidy to churches through tax-exempt status?
Reverend LYNN. The Members of Americans United for
Separation of Church and State are not monolithic in their
answer to that question. The last time we did a survey of our
own Members, about half of them said, do away with tax
exemptions for churches. The other half said, no, keep them,
they are important, as long as you give a similar tax exemption
to other charities. That is why we are not actively advocating
on this or other occasions about that issue.
Mr. FOLEY. Let me further the conversation earlier, because
you mentioned, why don't we give the right to the American
Cancer Association and others to be politically active? But I
sense there is a little bit of a difference, because in the
churches, truly, you do discuss a multitude of areas where
there is a need for involvement. Reverend Fauntroy mentioned it
himself. Don't you at least allow that that preacher, rabbi,
has some significant stake in the outcome of an election? You
can have these great moral discussions in church all day long,
but if you end up electing the wrong person who has no interest
in any of these issues, and you have allowed it to happen,
don't you by some sense fail your congregation?
Reverend LYNN. I think you may overstate the case about the
church and understate it for charities, because I think you can
say of any major organization that is tax-exempt, that they
have an interest, in the broadest sense, in the outcome of
elections.
But I do think it is a good idea to have a class of
organizations, tax-exempt charities, religious and otherwise,
which are trying to effect social change through the work that
they do day to day, through the advocacy and the educational
work, without getting involved in the issue of choosing the
best political candidate in every election. The equation is
exactly the same for all those other charities.
Believe me, as you well know as Members of this body,
people who are advocates for more funding for cancer and those
who are advocates for more funding for Parkinson's disease both
have an interest in the outcome of elections.
Mr. FOLEY. Granted.
Let me suggest to you that I am called to speak by the
Alzheimer's Association, the cancer groups. All these groups
ask me to speak to them two or three times a year. During each
presentation, they go on to tell their Members how strong I am
on these issues: ``Mark Foley wrote a letter for these, Mark
Foley did this.'' Ultimately, their influence is achieving the
same thing that this basic ruling is suggesting that they are
not capable of doing.
Reverend LYNN. They are capable of doing the same. In fact,
many churches would invite you and other Members of this and
other political bodies to come to their churches, and they
would thank you for the good work that you did.
They would not, however, put out campaign leaflets
explaining why you are literally God's gift to the country.
They would not endorse you from the pulpit. Those would be
steps that they would not be allowed to take under current law.
They should not take those under current law now, just as those
medical organizations should not be able to pass out your
campaign literature at their conventions, or invite you to
speak and not acknowledge that you have someone running against
you. That would be as wrong for a secular charity as it would
be for a church.
Mr. FOLEY. But they do.
Reverend LYNN. Maybe somebody should form a group and look
into that, because it is not my experience that charities, or
churches, by the way, are looking to break the law. I think
most charities want to obey the law. They like the bright-line
test we have now, which is no political endorsement.
``No'' does not mean a little bit, it does not mean 5
percent, 20 percent, or 19 percent. It just means no
intervention in a political campaign. I think it is simple to
understand. I think it has served us well, and I think we
should keep it.
Mr. FOLEY. Mr. May, maybe you can help us. Have you talked
to other church groups about the legislation, both versions,
Mr. Crane's and Mr. Jones', relative to their support for the
legislation?
Mr. MAY. I have. In Congressman Jones' measure, H.R. 2357
has polled the largest area of support. I would emphasize that
what this measure will ultimately do is simply remove the
anxiety and uncertainty, because it is very obvious, either
from Mr. Fauntroy's testimony or from the nearly 60 examples I
have provided in pages 18 through 22 of my testimony, that this
measure is not abided by by a whole bunch of churches in
America. I don't think we intend for those churches to be
regarded as criminals or somehow acting outside the law.
We know Jesse Jackson, for example, has preached in
churches, been endorsed in churches, raised money in churches.
This is not about creating some great fear that we are going to
change the nature of our democracy. Remember, until 1954,
churches did this all the time, and our democracy was not
otherwise fractured or fissured off in 100 directions.
The bottom line is that we want to make sure that the
occasional, the incidental endorsement, particularly from the
pulpit itself, does not mean that you lose your tax exemption.
Then I want to add one thing. Barry Lynn keeps saying that
somehow this permits the actual transfer of moneys from the
U.S. Department of the Treasury or from the donation plate of
the church. I have looked through the campaign finance reform
law. I defy him to show me a section of that law which makes
this legal and permissible. It is not there. It cannot be done.
Mr. FOLEY. Let me just ask quickly, Dr. Kennedy, do you
think that prohibiting ministers from speaking from the pulpit
on political issues and their candidates unfairly limits them
in carrying out their vocation?
Reverend KENNEDY. Yes, I do. For example, we talk about
moral issues. I have, as thousands of other clergymen have,
spoken at times about abortion, feeling that this is not right
and should not be done. But should I, 90 days before an
election, speak on that same issue and indicate some candidate
that may be against it or for it, I am in great jeopardy of
losing; or I do not lose anything, it is the congregation, the
people who lose it. I do not lose the money, it goes to the
church. But the people who give it lose their tax exemption,
which is something that they have now.
Mr. FOLEY. Thank you.
Chairman HOUGHTON. Thank you. Ms. Girton-Mitchell, I think
we cut you off at one point. Would you like to make a
statement?
Ms. GIRTON-MITCHELL. Thank you, Mr. Chairman. I was simply
going to say that on behalf of the National Council of
Churches, we believe that this legislation is unnecessary,
unwise, and unwanted. With the present statutes, the clergy is
able to do what is needed to be done.
Our primary focus is that of helping society in general.
Ministers are able to speak out on issues. We have very
knowledgeable congregations today who, with the right
educational opportunities, are able to make their decision on
political candidates without direct endorsements from the
pulpit.
Chairman HOUGHTON. Thank you very much.
Mrs. Thurman.
Mrs. THURMAN. Mr. Chairman, Mr. Pomeroy has a 4:00, and if
I could, I would like to go ahead and let him have my time.
Chairman HOUGHTON. All right. Go ahead, sir.
Mr. POMEROY. Thank you, Mr. Chairman, and thank you,
Congresswoman Thurman.
I must say that I am somewhat surprised at the testimony
that I have heard. One would conclude from some on the panel
that the church has been utterly silent on the moral issues of
our time for the last 50 years, ever since 1954.
Now, I think if we look back, my recollection of the
church's role during this period of time is as a significant
source of activism and leadership against segregation policies,
a major bulwark of the movement for civil rights, and certainly
raising the four questions, the important questions that needed
to be asked about the Vietnam War.
If some would think church activism and moral issues only
come from the left, look at the seventies, eighties, nineties,
the tremendous activism marshaled in congregations against
abortion, and the tremendous political force that has come from
there. So it certainly is not as though the churches have been
constricted or leaders of churches have been constricted from
speaking out about the moral issues of our time.
Really what this legislation is about is not at all, not
one little bit, about a fear that some kind of nuanced slip
from the pulpit might cross the line.
There are a couple of items I wish to put in the record on
this hearing. First is a copy of the ad that provoked the court
case in the Pierce Creek case that revoked their tax exemption.
This is a full-page newspaper ad that cites Scriptures: ``The
Bible warns us not to follow another man into sin, nor help him
promote sin, lest God chasten us. How then can we vote for Bill
Clinton?'' And it says by way of disclaimer, ``This
advertisement is cosponsored by the Church at Pierce Creek.
Tax-deductible donations for this advertisement are gladly
accepted.'' This is not some nuanced thing from the pulpit.
[The information follows:]
USA Today
October 1992
CHRISTIAN BEWARE
Do not put the economy ahead of the Ten Commandments.
Did you know that Governor Bill Clinton . . .
Supports abortion on demand? (Violates Exo. 20:13,
Lev, 20:1-5)
Supports the homosexual lifestyle, and wants
homosexuals to have special rights? (Violates Exo. 20:14, Lev.
20:13. See also Rom. 1:26,27)
Promotes giving condoms to teenagers in public
schools? (Violates Exo. 20:12, Col. 3:5. See also Rom. 1:28-32)
Bill Clinton is promoting policies that are in rebellion to God's
Laws. In our desire for change, do we really want as a president and a
role model for our children a man of this character who supports this
type of behavior?
But what about the economy?
Yes, we are in tough economic times but if God forbid that we sell
out our most sacred beliefs in a vain hope of financial gain. How can
we expect God to bless our economy if we plunge down a path of
immorality? (Deur. 28)
The Bible warns us to not follow another man in his sin, nor help
him promote sin--lest God chasten us. (See Deut. 13, Jer. 23, Prov.
4:14; 11:21; 16:5, 1 Tim. 5:22)
How then can we vote for Bill Clinton?
This advertisement was cosponsored by The Church at Pierce
Creek, Daniel J. Little, Senior Pastor, and by churches and
concerned Christians nationwide. Tax deductible donations for
this advertisement gladly accepted. Make donation to: The
Church at Pierce Creek. Mail to: PO Box 132 SVS, Binghamton, NY
13903-0132
This advertisement was not authorized by any political
candidate or candidate Committees.
Mr. POMEROY. What worries me about this is that we are
going to have almost an Elmer Gantry model, someone with an
agenda that is not their best effort at understanding their
lord's agenda, God's agenda, but their agenda, trying to enlist
and inflame the congregation so they might contribute funds
that church leadership could directly funnel into campaigns
with utterly no disclosure about where those dollars are
individually coming from.
Now, you say, no way, religious leaders would not be prone
to overstate. Let me read to you from an ad that I will also
put into the record of this hearing, a mailing: ``Stop IRS
intimidation of churches and ministries. Please help my church
and my pastor so we can,'' and this is the response, ``Yes,
help us. Fight for us. Please help my church and pastor so we
can speak out on moral issues of national importance. I stand
behind you to support all the work'' of a certain ministry. And
it goes on to say in the petition itself, ``Please give your
full support to passage of legislation that would restore
freedom of speech to America's houses of worship.''
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Mr. POMEROY. Well, in my opinion, that does not in any way
represent an effort to capture for the parishioner the issue
before us. In fact, I think it is a perfect example of what we
are worried about, a religious leader leveraging the confidence
and faith of their congregation to drive a personal agenda by
funneling cash directly into the political system. A lot has
changed since 1954, Mr. May.
In fact, in 1954, I think we would have one cycle where
there was the initial effort of television advertising. The
technological revolution undergirding the campaign since that
time has been a complete revolution, completely expanding the
influence of money in campaigns and enhancing the danger of
those that would purport to speak on behalf of God interpreting
very narrow political agendas.
I will quote from the testimony of Dr. Kennedy, where he
talks about we need this bill because present law selectively
silences those who have the greatest vested interest in
upholding the moral law of God. Well, Dr. Kennedy, there are a
whole host of churches on the other side of this question from
now. I go to one of those churches, the Presbyterian church,
and when we pray the Lord's prayer in my church, we pray that
God's will be done on Earth like it is in heaven, and we really
mean it.
We don't think you mean it any more than we mean it. We
mean it, too. We couldn't be more sincere and devout as we try
to bring this about. So, I must say I not only take exception,
but I take some offense that you purport to have a greater
vested interest than we do in trying to bring about the Lord's
work on Earth. And let me just tell you that that is exactly
the kind of attitude that makes me so fearful of a church
leader being able to use, really almost misappropriate the
funds of the trusting parishioners for crass direct entry into
the political system, again, without any accountability in
terms of where those dollars are coming from.
I have used my time, Mr. Chairman. I thank you for letting
me speak my piece on this important legislation.
Reverend KENNEDY. Mr. Chairman, having been mentioned by
name----
Mr. POMEROY. Go ahead, Doctor.
Reverend KENNEDY. I would like to respond. Sir, you totally
misunderstand what that statement means. I, in making that
statement, was referring to the clergy in general in this
country, that if the clergy are silenced, since it is the God-
given function of the clergy to try to maintain decency and
order and morality in a nation. As we have seen one historian
said, it was from the Puritan pulpit that the moral force of
America was borne and strengthened. Therefore, I am saying if
the Congress, or anybody, were to silence clergy on crucial
issues, then they would have been, indeed, hampering the moral
ongoing of decency in America, and that I say is what precisely
has happened.
Mr. POMEROY. Dr. Kennedy, I would just respond by saying
that this country was founded on very important religious
values. They continue to be the bedrock of what distinguishes
our Nation and represent the hope for our future, but it does
not take a 30-second ad funded by parishioners to establish
moral leadership from the churches. And in fact, the moral
leadership of the churches during the period of time that you
say we have been silenced, I think, speaks so powerfully for
historical evidence that indeed the present balance has allowed
the church plenty of room to offer their ongoing vital
contribution to this country. I believe this legislation tipped
that over in very dangerous ways.
Mr. MAY. Mr. Chairman, since my name was mentioned as well,
might I have a moment to respond?
Chairman HOUGHTON. Absolutely.
Mr. MAY. I would just say, again, on page 1 of my
testimony, I explain why under the new campaign finance laws
and the current campaign finance laws, there is no such thing
as taking out a 30-second ad by the parishioners with use of
the church money. It can't happen. The second thing is that you
have expressed, I think, a balanced revulsion toward the idea
that churches may get so involved in political matters. But the
truth is, there is a gigantic portion of the churches in
America who do this, and either we have laws that are
evenhanded and apply across the board or not. We have had
testimony from Mr. Fauntroy, who has made it clear that he has
endorsed from the pulpit. The IRS expert panelist said that
clearly is political intervention in violation of the Tax Code.
I don't believe it is the intent of Congress for our pastors
and our moral leaders to be able to say to their congregations,
I have an understanding about what I believe is right in terms
of justice and indeed what the call of God is on my life and my
congregation's life. And therefore, I believe that so and so
does better in the public sphere to recognize and to fulfill
those things than such and such. Please support and vote for so
and so.
And when you do that incidentally or occasionally, I don't
believe the republic comes crashing down. We did it before
1954, and this measure simply provides that same sense of
balance back into what we are doing today.
Mr. POMEROY. Again, it is not as though the churches have
been missing from the landscape of debate on these issues since
1954. They have been at the heart of debate on one moral issue
after another. Dr. Gaddy, as long as everyone else is jumping
in with the other side, do you feel or do you, the ministers
your organization speaks for, feel as though they are somehow
constrained and muted about their ability to participate in
national debate relative to moral issues?
Reverend GADDY. I am completely baffled by that
observation. I don't know what ministers are talking about in
the pulpit if they are not talking about the way religion
impacts life in all of its complexity and need. What is at
stake here, as I understand it, is not a prohibition against
any minister talking about issues that have moral dimensions to
them. What is at stake here is saying to ministers that you
should not use the sacred desk and claim the authority of God
to endorse a candidate for public office. And I have a hard
time, I must admit, understanding why ministers resist that.
The fact is that if we went that route, perhaps there would
be mobilized some political movements that would be satisfying
to the supporters of these proposed bills. You might accomplish
that, but you would lose your congregations. Can you imagine
what happens to people in a congregation who have fundamental
spiritual needs of grief or family counseling or whatever, and
they find themselves in a congregation in which they, on the
basis of their conscience, disagree with the endorsement of the
president of the congregation or of the pastor or the rabbi or
the imam? Where do they go for help? And, so you reconfigure
the whole religious landscape so that people are looking for
ministers whom they can trust for spiritual counsel on the
basis of the political identity of that congregation. People
don't deserve that, and this Nation doesn't need that.
Mr. POMEROY. You think indeed that there might be, with
this legislation, more of an inducement for those to take
advantage of a minister position to drive a political agenda,
either personal or very personally entwined with the
ideological advocacy in an election?
Reverend GADDY. It is an invitation to do that as I see it.
To pass the legislation would say we are encouraging ministers
to become political power brokers and to endorse candidates
from the pulpit. Ministers are a cross-section of the
population, and sometimes ministers, like everyone else, use
their religion rather than letting their religion use them. It
is very possible, under the passage of a bill like this, that
someone could mistake indigestion or a political preference as
the revelation of God. In a hierarchical congregation in
particular, if the minister says this is God's man or woman for
this position, people in that congregation have a religious
responsibility to pay attention to that authority. I think it
is a blatant misuse of religious authority.
Reverend FAUNTROY. May I respond to two issues?
Chairman HOUGHTON. We have got to move along here, Walter.
But please go ahead, and then we will----
Reverend FAUNTROY. Well, first of all, if I thought that
this bill authorized the laundering of money for political
purposes to the churches, I would be opposed to it. And second,
I do take issue with those who say the church has spoken out
over the last 30 or 40 years. And most of the times they have
spoken out the wrong way, as far as I am concerned. You ought
to read Martin Luther King's letter from a Birmingham jail to
get an idea of what some churches thought needed to be done to
endorse the status quo.
And you need--I teach my people, at least in my church,
that I am not God, that God is not a Democrat or a Republican,
God is not a white or a black, God is not a Muslim, Catholic,
or a Jew. God is the one who rewards those who diligently seek
him in the care of the least of these. And it is not enough to
talk that talk generally. You have got to take the newspaper in
the pulpit, at least what they are reading, and help them to
interpret the word of God.
And I would hope that this bill would not authorize people
to claim they speak in the name of God. They speak in a name of
a world that is consistent across every major religion in the
world. Take it from somebody who has studied comparative
religion, that God requires you to do justly, love mercy, and
walk humbly with God and not just talk it, but walk it.
Chairman HOUGHTON. Thank you. Mrs. Thurman.
Mrs. THURMAN. Thank you, Mr. Chairman. First of all, I need
to ask a question. How many churches are there in this country?
I am just curious. I have no clue what that number is. Anybody
know?
Reverend KENNEDY. There are about 300,000 Protestant
churches. I know that.
Mr. MAY. I was just going to add there must be at least
280,000 because Barry Lynn mails to them to make sure that
churches don't do this sort of thing.
Reverend FAUNTROY. I can tell you the statistics for--the
1990 Census show there were 40,000 African American churches
across seven denominations that convened 24 million people a
week.
Mrs. THURMAN. So, Mr. May, when you said that this law was
intrusive, let me just give you some facts that we have, that
there has only been two churches that have lost their
exemptions. There have been only four to five religious groups
that have lost their exemption. And it is my understanding
there are only two that have led or have had to pay an excise
tax. So I would say, after asking that question and the
response I get, that is a very small percentage. I certainly
can appreciate and understand, you know, the issue and why you
are in favor of this, but I certainly am not one to believe
that we have been so intrusive of this government into our
churches and our places or worship that this, you know, has
caused a problem.
You know, I am somewhat offended in some ways for those
that might be for this piece of legislation. I know that sounds
a little curse, but I have to tell you. You know, I am a
thinking person. I go to a church to get my moral stability, to
hear the teachings, to have an understanding of the word. I
don't go for somebody to interpret for me how and what I should
believe, how I should think, and how I should vote. I would be
offended and am offended if that happens. That is my right to
decide that, and I do worry about that retribution if I, in
fact, voiced a different opinion as to either part of my
congregation or to my pastor. You know, what kind of
retribution is put on me as a person that has a different
thought?
I mean, we see that now all across our country where that
can happen. I mean, you know, I have people that come up to me
all the time and say I am such and such, but I just don't
believe, you know, this part of what they are teaching. And to
come down and feel like--I mean, I have to tell you, I mean, I
would like to believe that we should not take something that we
think is very precious to our democracy away from people, and
that is, the ability to think and clearly decide, based on what
you have taught them. I mean, you also need to understand that
you have been giving them what you believe is the right way to
live your life.
And certainly through those teachings, you know, Dr.
Kennedy and others, you would be imparting that information
onto them. Do we have such little faith in those folks that
listen to us that not to make the right decision, but that we
would have to be told what decision were made because we don't
get it? I mean, I just--I am very confused that we would go in
that direction.
And maybe the opposite I guess could be made that, you
know, maybe you should be able to do that and we should still
have the right to have that decision, but I--just as a person
who would do that--and especially because there is an ability
for you to already do that under section 501(c)(4). If people
believed that you ought to be involved in those activities,
they have a way of giving those moneys, just like people who
give money to me for my campaign. They don't get tax deductions
for that, and they give me the opportunity to spread my word,
and people have the right to hear it and make a decision.
So I just--if you want to comment on it, fine. I just kind
of----
Reverend LYNN. I would like to comment on it also. I think
Congresswoman Thurman, you raise a good point about what brings
70 percent of Americans in the latest poll to opposing this
idea of allowing churches to contribute. Churches do, in fact,
make important civic contributions by the educational process
they use. Even a tax exempt church is invited to have--
certainly may invite all the candidates for the school board or
the local congressional race to come to their church. If he or
she chooses not to come, that is the decision by the candidate.
There are also kinds of civic responsibilities that churches
can take, including nonpartisan get-out-the-vote campaigns, as
the representatives on the first panel made clear.
So it is not like those of us who are actively engaged in
the church cannot help educate people, but ultimately the
education ought to stop at the polling place curtain. I think
that is exactly where ministers, priests, imams, and rabbis
should not be. And this is a bill that would take them a lot
closer than they ought to get.
Reverend KENNEDY. May I say that I certainly agree with you
that intelligent people have the right to think. If this bill
were in any way trying to limit that, I would definitely oppose
it. I certainly believe that I have the right to think. I
believe my congregation has the right to think. Our
congregation happens to be of a certain economic level, but
most of those people are very well educated. We have many
doctors, lawyers, professors of this sort in our congregation.
I have never once ever told them to vote for anyone or
against anyone. Why? It is against the law. I try to keep the
law. Nor the idea that I as a clergyman am going to go inside
the curtain when they pull their levers and cast their votes, I
mean, that is just too preposterous even to comment on. But the
thing is, if it is true that many, many people would hear a
pastor speaking and may recommend a candidate, if they didn't
like that, they would go somewhere else, and let me say this,
ministers are not utterly stupid. They are not going to do
things from the pulpit that are going to drive their
congregation away. I can't imagine that they would be that
foolish.
And so, you know, there is a fact, a man has his own
conscience, his own mind, and he is going to indeed keep in
mind the congregation he is dealing with. And the ideas that
have been bounced around by several Congresspersons today to me
are just beyond comprehension that any minister would do
something as foolish as that.
Mr. MAY. Could I just comment that all this measure--
Congressman Jones' measure is intended to do, is, for the same
reasons, apparently Congress is comfortable with, an
insubstantial amount of lobbying activity from churches and
exempt organizations. They are going to accept the same sort of
thing from churches, and part of the reason is it is already
happening. You know it is happening. I know it is happening.
But we are talking about direct endorsements now. Again, I
refer you to the 60 examples I provided in my testimony, just
from a Lexus-Nexus search. It is real clear that many pastors
in America, in fact, believe for the reasons that Mr. Fauntroy,
who has communicated here today, that he believes may be part
of his responsibility to let his flock know how he feels about
these issues. There is nothing improper or immoral about it.
I don't believe he insults his congregation when he does
it, and I am sure they are filled with thinking people just
like your congregation is. But he believes it is important to
do it, and it is part of the democratic pluralistic system we
have. And when you know that many churches may do it, but
others, for the reasons that Dr. Kennedy just articulated, he
won't break the law, you have got yourself this dual-standard
kind of a system.
Now, that is not what anybody really is trying to get here,
so all we do for the same reasons that you trust them to be
able to engage in lobbying, a very important activity for a
free people, likewise they could do the same thing.
Now incidentally or occasionally, not a lot of it,
insubstantial is the phrase--no 5 percent Bright-Line. We are
not here to support Congressman Crane's measure in that
context, but Congressman Jones' we are for the reasons we
expressed. We do believe it is a liberty issue, which is why we
are very comfortable in suggesting that, in fact, it is a
necessary change for the law.
Mrs. THURMAN. But let me say something to you, though.
Every day we are going to have a piece of legislation on the
floor this week, and my guess is that there will be a group of
organizations that will be supporting the welfare reform or not
supporting it. It will have the interfaith alliance. It will
have the Catholic church charities. It will have, I don't know
how many more. We get that lobbying all the time. We hear from
those people all the time. It is not against anything. It is
not, you know, so you are still given that opportunity in your
participation of government.
Mr. MAY. And you don't believe it threatens democracy and
freedom, of course. That's right. It is perfectly good to have
that exchange.
Mrs. THURMAN. And I don't disagree, but I think from, maybe
from the pulpit or from or ways without going through the
proper channels, I mean, I think, you know what? We just
disagree.
Mr. MAY. Will you just acknowledge for me that, in fact, it
happens and it does happen a lot in a lot of churches in
America right now today, and either the IRS has decided because
it was articulated in its panel that it is against the current
law, and yet they do it and the IRS goes, oops, I didn't see
that, but now and again, they may decide there it is; I am
going to make sure this person gets penalized. And that is the
reason I think you have to change it, to make it fair and right
for all players in the game for the reasons that----
Mrs. THURMAN. Well, it just seems odd to me, as I mentioned
the statistics that I have, that two or three churches have
been the ones that have been penalized when there are hundreds
of thousands of other churches out there. One or two didn't
play. One or two didn't get caught. I don't know what the
reasons are, but it seem to me some chose to go a little step
further than those who have tried to play by the rules. And I
think that is the issue here.
Reverend LYNN. You know, I do know what the answer to some
of this is, because we were involved in distributing
information to the Internal Revenue Service about that
outrageous ad that Congressman Pomeroy indicated. It had been
placed in USA Today at a cost of $44,000. The pastor of that
church, who Mr. May represented, said repeatedly, including to
the courts and to the IRS, you know, God told me what to do and
I don't really care what the Congress says or the courts say or
the IRS. I am going to keep doing it. Compare that to your
former colleague here, Congressman Floyd Flake. Congressman
Flake endorsed Al Gore over Bill Bradley in the New York
primary in the last presidential race. That was considered a
pulpit endorsement. The IRS visited him. He said, you know, I
did the wrong thing. I am not going to do it again.
So obviously the treatment that the IRS gives to someone
who says I made a mistake and I am not going to do it again
ought to be different from that of a man who says, God told me
to do it, I don't care what the secular law requires, and I am
going to keep doing it again. That is a distinction that makes
a difference in law enforcement across the board.
Reverend FAUNTROY. Mr. Chairman, may I please ask for
clarity on three things. I read 2357, and I did not think it, I
did not interpret it as authorizing churches to monitor money
for political candidates.
Mr. MAY. It does not.
Reverend FAUNTROY. Second, I did not consider it a means by
which a church could meet and, by a binding vote, commit the
church to vote for somebody. That is not true, is it?
Mr. MAY. No.
Reverend FAUNTROY. All right. Now, third, my view is that
the responsibility of leadership is to lead, and I will not
abandon that responsibility. And I don't want to see ministers
like Floyd Flake who have got people who are wanting in income,
in education, health care, housing, and justice, to many
ministers every day who have a stake in the election, not to
know what he is committed to learn as a leader, to share with
them, not a binding vote, but simply to say, look, I have
looked at this. You all have been pushing pots and pans in
somebody's scrub kitchens all week.
I have been reading, and I have been studying these things,
and I think consistent with our mission, I am going to vote
this way, and I hope you will. Is anything wrong with that? And
why would Floyd Flake feel upset about looking at----
Reverend GADDY. I do see something wrong with it.
Reverend FAUNTROY. Tell me.
Reverend GADDY. Okay. Because the authority of the person
behind the pulpit is a derived authority. When you become a
religious person, you don't become perfect in all
understanding. Ordination doesn't carry with it a guarantee of
infallibility. The authority is a derived authority based on
the scriptures and oral traditions, and the nature of the God
that you serve. People listen to you when you work with that
authority saying ``We need to feed the poor, we need to clothe
those who are naked'' and so forth, but the leap from speaking
with that authority to saying ``and the best way for you to do
that is to vote for this candidate'' that is not a legitimate
use of spiritual authority. Then you are speaking of your
personal judgment.
Reverend FAUNTROY. Sir, you need to come to my church and
be a part of my----
Reverend GADDY. I can't. I have to preach in my church.
Reverend FAUNTROY. They do not consider me God. You hear
me? And a lot of people in the congregation----
Chairman HOUGHTON. We will accept that as fact, Walter.
Reverend FAUNTROY. No, they really don't. And you can trust
people to make their own judgments, but they want to know from
their spiritual leader, and spirituality has little to do with
a pie in the sky. It has to do with these five things I have
been talking about, and they want to know how you feel.
Reverend GADDY. But you are using a spiritual judgment, in
your words, using a spiritual judgment to commend a political
decision.
Reverend FAUNTROY. And politics is about who gets how much,
what, when, and where. I understand that and----
Chairman HOUGHTON. All right. I would like to ask Mr. Lewis
for a comment.
Mr. LEWIS. Mr. Chairman, I think Dr. Gaddy said it all, and
I don't want to get into a battle between these two religious
leaders here. Walter, all of that may be well and good, maybe
perfect in your understanding. No one is asking people to
violate their conscience, their religious conviction, but if
you violate the law, then you are prepared to pay the
consequences, and that is very much in keeping with the
philosophy of nonviolence, with the philosophy of David Thoreau
in Civil Disobedience. So if you go down that road, then all
the rest will be--you know, the law is the law.
Reverend FAUNTROY. That's right.
Mr. LEWIS. And the church is not necessarily--the
activity--political activity, cannot secede the law.
Chairman HOUGHTON. Thanks very much.
Mr. LEWIS. I guess we can say amen to that, huh?
Reverend FAUNTROY. Yeah. I have done it all my life. Unjust
laws are not to be obeyed. Ask Thoreau. Ask Martin Luther King,
Jr.
Chairman HOUGHTON. Well, usually the Chairman has to step
in and stir things up. I didn't have to do that today. It has
been an extraordinary day. I certainly appreciate this, and if
there are no other questions, this Subcommittee hearing is
adjourned.
[Whereupon, at 4:27 p.m., the hearing was adjourned.]
[Submissions for the record follow:]
Alliance for Justice
Washington, DC 20036-1206
May 14, 2002
The Honorable Amo Houghton, Chairman
Committee on Ways and Means
Subcommittee on Oversight
U.S. House of Representatives
1136 Longworth House Office Building
Washington, D.C. 20515
Dear Representative Houghton:
The Alliance for Justice submits this written statement for
consideration by the Subcommittee On Oversight and inclusion in the
printed record for the May 14, 2002 hearing on the Houses of Worship
Political Speech Protection Act (H.R. 2357) and the Bright-Line Act of
2001 (H.R. 2931).
The Alliance for Justice is a national association of 60 public
interest advocacy organizations. A primary mission of the Alliance is
to strengthen the capacity of the public interest community to
influence public policy. The Alliance's Nonprofit Advocacy Project
works with nonprofits around the country to enhance their ability to
participate in the policy process. The Project monitors federal
legislative developments that impact 501(c)(3) organizations, offers
workshops on the rules governing nonprofit lobbying and political
activity, and produces plain-language legal guides for nonprofit
organizations.
The Alliance for Justice is opposed to the passage of the Houses of
Worship Political Speech Protection Act and the Bright-Line Act of 2001
in their present form. We oppose any amendment of the tax code that
confers rights to one group of 501(c)(3) organizations to the exclusion
of others. However, we would support permitting all public charities to
engage in a limited amount of political activity.
Presently, the law strictly prohibits any 501(c)(3) organization
from engaging in political activity. The Houses of Worship Political
Speech Protection Act and the Bright-Line Act of 2001 propose to amend
the Internal Revenue Code to permit religious 501(c)(3) organizations
to engage in political activity while continuing to forbid non-
religious 501(c)(3) organizations from engaging in these activities.
This distinction between religious and non-religious 501(c)(3)
organizations is both exclusionary and unwarranted.
The provision is unwarranted because non-religious 501(c)(3)
organizations are in greater need of a law allowing insubstantial
political activity than are religious organizations. As the D.C.
Circuit Court of Appeals noted in Branch Ministries v. Rossotti, when a
religious organization loses its tax-exempt status because it engages
in political activity the loss is more symbolic than substantial. If
the Church does not intervene in future political campaigns, it may
hold itself out as a 501(c)(3) organization and receive all the
benefits of that status. 211 F.3d 137 (D.C. Cir. 2000). Religious
501(c)(3) organizations do not have to submit an application to the IRS
for tax-exempt recognition, thus, the loss of their tax-exempt status
is less detrimental then it would be to a non-religious 501(c)(3)
organization. Non-religious organizations stripped of their exemption
for electioneering would have to reapply with the IRS to regain their
tax-exempt status.
In addition, history suggests that a complete ban on political
activity was never intended for any 501(c)(3) organization. Legislative
history supports the view that Senator Lyndon Johnson's amendment to
create the political prohibition, adopted as part of the 1954 Revenue
Act, was intended to extend the same insubstantial activity
restrictions on political activity as it did to lobbying. 100 Cong.
Rec. 9,604 (1954). Nevertheless, the IRS and judiciary have continued
to interpret an absolute ban on political activity. Thus, to correct
this misinterpretation, all 501(c)(3) organizations should be allowed
to engaged in an insubstantial amount of political activity.
The Alliance for Justice believes that any change to the political
prohibition should apply equally to all 501(c)(3) organizations, not
strictly religious 501(c)(3) organizations. We oppose any proposed
change that is inequitably reserved for the benefit of some 501(c)(3)
organizations to the exclusion of others. Therefore, unless the Houses
of Worship Political Speech Act and the Bright-Line Act of 2001 are
amended to apply to all 501(c)(3) organizations, we would oppose any
amendment to the current political prohibition.
Thank you for this opportunity to comment on these bills. We would
be happy to assist the Subcommittee in any way as it considers this
legislation.
Sincerely,
Nan Aron
President
Statement of the American Jewish Committee
AJC STRONGLY OPPOSES THE HOUSES OF WORSHIP POLITICAL SPEECH PROTECTION
ACT OF 2002
With over 110,000 members and supporters and 32 offices around the
country, the American Jewish Committee, an organization, long engaged
in the fight for civil rights and religious liberty, strongly opposes
the Houses of Worship Political Speech Protection Act, introduced last
year as H.R. 2357 by Representatives Walter Jones (R-NC) and John
Hostettler (R-IN).
This bill would endanger the integrity and autonomy of houses of
worship by injecting them into partisan political campaigns. Federal
tax law has been clear for decades: houses of worship, like other
501(c)(3) organizations, cannot legally engage in partisan politicking
and retain their tax exempt status for contributions. This simple and
unambiguous provision of federal law has served as a valuable safeguard
for the integrity of both religious institutions and the political
process.
Current law upholds the integrity of houses of worship. Churches,
synagogues, temples and mosques should not be used as political
headquarters or as a means of partisan fundraising for political
activities. Tying houses of worship to partisan activity would demean
those institutions, and the potential for them to be involved in
political campaigns would lead to pressure on them to take a partisan
stance.
This bill is unwanted and unneeded by America's clergy. In a recent
Gallup/Interfaith Alliance Foundation poll, a full 77% of clergy were
opposed to their fellow clergy endorsing political candidates. Another
poll conducted by The Pew Research Center for the People and the Press
and The Pew Forum on Religion and Public Life, found that 70% of
Americans feel that houses of worship should not come out in favor of
one candidate over another during political elections.
The bill is predicated on false assumptions about existing law.
Supporters of these bills have argued that their enactment is necessary
to allow religious leaders to speak out on issues of interest to their
congregations. The reality is that religious leaders have an absolute
right to use their pulpit to address the moral issues of the day. The
only things tax-exempt houses of worship may not do is endorse or
oppose candidates, or use their tax-exempt donations to support
partisan campaigns. Current law simply limits groups from being both a
tax-exempt ministry and a partisan political entity.
In addition, this bill would open a dramatic loophole in the
nation's campaign finance laws. Donations to houses of worship are tax
deductible because the government assumes that their work is
contributing to the common good of society, not a political party or a
partisan campaign. As such, contributions to churches are tax
deductible and donations to political candidates and parties are not.
Therefore, these bills would create a significant new loophole in our
nation's campaign finance laws with serious ethical and legal
implications.
The American Jewish Committee urges you to oppose this measure,
which threatens religious liberty and the independent character of
houses of worship.
Statement of the American Jewish Congress
The American Jewish Congress is an organization of American Jews
founded in 1918 to protect the civil, political, religious and economic
rights of American Jews and all Americans. It is tax exempt under 26
USC Sec. 501(c)(3). In its work it has emphasized both the protection
of religious liberty and the ban on religious establishment. Although
firmly committed to the freedom of religious persons and institutions
to speak freely concerning public issues, it nevertheless opposes the
so-called House of Worship Political Speech Protection Act, H. 2357 as
both unwise and unconstitutional. Moreover, even if it agreed with the
bill's purpose and goals, the language of the House of Worship
Political Speech Protection Act would not in any event achieve its
stated purpose.
I. LReligious Ideas Are Not-Band Should Not Be-Banned From the
Marketplace of Ideas
Exempt organizations are, and should be, free to address public
policy questions from whatever perspective they choose without
hindrance from government. This is as true of religious organizations
as it is of any other.
The separation of church and state does not require the exclusion
of religious voices from the marketplace of ideas. On the contrary, as
Justice Brennan explained, concurring in McDaniel v. Paty, 435 U.S.
618, 640-42 (1978):
[R]eligious ideas, no less than any other, may be the subject
of debate which is ``uninhibited, robust, and wide-open. . .
.'' Government may not interfere with efforts to proselyte or
worship in public places. . . . It may not tax the
dissemination of religious ideas. . . . It may not seek to
shield its citizens from those who would solicit them with
their religious beliefs. . . .
That public debate of religious ideas, like any other, may
arouse emotion, may incite, may foment religious divisiveness
and strife does not rob it of constitutional protection. . . .
The mere fact that a purpose of the Establishment Clause is to
reduce or eliminate religious divisiveness or strife, does not
place religious discussion, association, or political
participation in a status less preferred than rights of
discussion, association, and political participation generally.
``Adherents of particular faiths and individual churches
frequently take strong positions on public issues including . .
. vigorous advocacy of legal or constitutional positions. Of
course, churches as much as secular bodies and private citizens
have that right.''
The . . . goal of preventing sectarian bickering and strife
may not be accomplished by regulating religious speech and
political association. The Establishment Clause does not
license government to treat religion and those who teach or
practice it, simply by virtue of their status as such, as
subversive of American ideals and therefore subject to unique
disabilities. . . .
In short, government may not . . . promote ``safe thinking''
with respect to religion and fence out from political
participation those, such as ministers, whom it regards as
overinvolved in religion. Religionists no less than members of
any other group enjoy the full measure of protection afforded
speech, association, and political activity generally. The
Establishment Clause, properly understood, is a shield against
any attempt by government to inhibit religion. . . . It may not
be used as a sword to justify repression of religion or its
adherents from any aspect of public life. . . .
The antidote which the Constitution provides against zealots
who would inject sectarianism into the political process is to
subject their ideas to refutation in the marketplace of ideas
and their platforms to rejection at the polls.
(Citations omitted.)
Nothing in the Internal Revenue Code prohibits houses of worship,
or their clergy, from taking a position on the burning ``moral'' issues
of the day or from endorsing candidates. Any rule of that sort would be
incompatible with historic practice. American religious leaders took a
leading role in preaching about the Revolution, slavery-on both sides,
it should be recalled-social reform, nativism, science teaching in the
schools, prohibition, war and peace, civil rights, and, of course,
gambling and abortion. In retrospect, some of these religious
intrusions into the political sphere produced happy results. In others,
the results were less happy, even, judged by today's standards,
offensive. But that does not mean that government should seek to
silence religious speech. And, in fact, it has not, although it does
limit (or ban) such speech when paid for with tax exempt dollars.
Whatever else may be said about the current tax law, it cannot be
said that it has silenced religious or anti-religious speech. One would
have to inhabit a different political universe than ours not to know
that on many of the burning political and moral issues of the day,
religious voices play an important, even determinative, role. Studies
of recent elections show that even under current tax law, religious
positions on such issues correlate closely with voting behavior. See
generally, M. Silk, ed., Religion and American politics: The 2000
Election In Context (2001). If there is a problem of a closing of the
marketplace of ideas to moral or religious ideas, it is not evident to
informed observers.
The American Jewish Congress often disagrees with the speech of
religious leaders, sometimes even often insisting that religious
speakers seek imprudently to inject religion into the sphere of
government. But those disagreements do not justify silencing religious
speech, any more than religious objections to secular speech justify
silencing it.
Current Law
Current law (26 U.S.C. Sec. 501(c)(3)) exempts from income tax any
``corporation organized and operated exclusively for religious,
charitable, scientific or . . . education purposes,'' provided that
``(a) no substantial part of the activities of which is carrying on
propaganda or otherwise attempting to influence legislation; and (b)
which does not participate in, or intervene in . . . any political
campaign on behalf of (or opposition to) any candidate for public
office.'' Contributions to exempt organizations are, more importantly,
tax deductible. 25 U.S.C. Sec. 170.
The ban on endorsing or opposing a candidate for public office is
total and applies equally to all 501(c)(3) tax exempt organizations.
Religious groups labor under no special disability. All 501(c)(3)
organizations may not use a ``substantial'' portion of their resources
to influence legislation, and none can use any tax-exempt money to
intervene in a political campaign. Religious opponents of abortion and
secular advocates of reproductive choice alike must use taxable dollars
to endorse or oppose candidates. By contrast, the ban on ``attempting
to influence legislation'' is less total. An ``insubstantial'' amount
of a secular or religious exempt organization's assets may be used to
influence legislation.
Unfortunately, neither the Code nor the implementing regulations
specify the demarcation line between substantial and insubstantial
efforts at influencing legislation. The result is that exempt
organizations live with a fair amount of uncertainty. In practice, the
IRS has not been particularly vigilant in enforcing this condition. It
appears to rely chiefly on self-policing, a policy which can give the
unscrupulous a substantial advantage over groups attempting good faith
compliance with the law.
The late Reverend Dean Kelley, the National Council of Church's
expert on church-state relations, once informed the undersigned that
internal IRS documents released to him under the Freedom of Information
Act placed the line at somewhere between 5 and 20 percent of an
organization's expenditures. This uncertainty makes it difficult for
exempt organizations to know whether to speak on a particular piece of
legislation, since they have no way of knowing whether that effort
would put the organization over the vague ``substantial'' threshold.
Organizations have to decide whether to be active in influencing
legislation in February, lest come October they would be silenced on a
more important issue. H.R. 2357 would compound this confusion by
extending the ``substantiality'' test to ``supporting or opposing
candidates,'' without lending any greater precision to it.
Congress has provided an alternative to the uncertainty of the
substantiality test for secular 501(c)(3) organizations. They may elect
to be covered by the so-called Conable Amendment, 26 U.S.C.
Sec. 501(h), which, incorporating provisions of 26 U.S.C. Sec. 4911,
specifies amounts which may be spend on influencing legislation.
Churches may not so elect, 26 U.S.C. Sec. 501(h)(5).
The exclusion of churches was not intended to discriminate against
churches, nor was it motivated by an animus against religious speech,
nor the fear that encouraging religious organizations to influence
legislation would endanger church/state separation. The exclusion was
inserted at the behest of churches, who wished to preserve their claim
that Congress could not constitutionally tax churches, and surely not
condition exemption on limiting their religious speech.
Subsequent to the enactment of Conable, however, the Supreme Court
has twice held that religious institutions are not constitutionally
exempt from taxation, Jimmy Swaggert Ministries v. Bd. of Equalization,
493 U.S. 378 (1990); Bob Jones University v. U.S., 461 U.S. 574 (1983).
It has further held that conditioning exemption for 501(c)(3)
organizations on limits on influencing legislation is not an
unconstitutional condition. Regan v. Taxation With Representation, 461
U.S. 540 (1983); Branch Ministries v. Rossoti, 211 F.3d 137 (D.C. Cir.
2000).
Although religious institutions had--and have--a substantial claim
that the separation of church and state prohibits the state from taxing
the church, for the moment-and for the foreseeable future-that claim is
not recognized by the Supreme Court. Consequently, Congress may want to
reconsider the blanket exclusion of religious organizations from
Conable coverage. Provided that Conable election remains voluntary, it
is hard to see why religious institutions should be automatically
foreclosed from such an election.
As noted, the ban on the endorsement of candidates is total. Again,
the prohibition applies equally to all organizations exempt from
taxation under Sec. 501(c)(3). And, as noted, the courts have found
this restriction constitutional even as applied to religious
organizations. Branch Ministries, supra; Christian Echoes National
Ministry v. U.S., 470 F.2d 849 (10th Cir. 1972). As Branch
Ministries pointed out, these rulings are simply a routine application
of the general rule that tax exemption is a form of subsidy which the
government need not extend to all subjects on which people choose to
speak, 211 F.3d at 143-44, citing Regan, supra, 461 U.S. at 548;
Cammarano v. U.S., 358 U.S. 498, 513 (1959).
Although Regan and Cammarano are free speech cases, adding the Free
Exercise Clause to the analysis changes nothing. Cf. Larsen v. Valente,
456 U.S. 258 (1982) (religious speech subject to same restrictions as
secular speech). The rule barring a group from involving itself in a
political campaign as a condition of receiving exemption is a rule of
general applicability allowing for no individualized exceptions. Under
current law, such rules do not violate the Free Exercise clause. Smith
v. Oregon Div. of Employment Security, 494 U.S. 872 (1990).
Even if, as the AJCongress believes would be best, Smith were to be
overruled, and the law would return the older and sounder rule of
Sherbert v. Verner, 374 U.S. 398 (1963), it would be necessary to
demonstrate that a rule ``substantially burdened'' religious activity
before the government would be obligated to offer any accommodation.
The Supreme Court has held that while subjecting religious
organizations to neutral tax rules makes religious speech marginally
more expensive, it does not ``substantially burden'' it as that term is
used in constitutional law. Jimmy Swaggert Ministries, supra, 493 U.S.
at 391; Hernandez v. CIR, 490 U.S. 680, 700 (1989). Government is under
no duty to exempt religious organizations from the limits contained in
Section 501(c)(3).
In Regan, several concurring Justices observed that the
restrictions of 26 U.S.C. Sec. 501(c)(3) would be constitutional only
if there were an alternative avenue of communication left open to
exempt organizations. Later cases adopt this requirement. Religious and
other exempt organizations are not, however, without an effective and
adequate alternative. As the D.C. Circuit Court of Appeals has
explained:
[T]he Church may form a related organization under section
501(c)4) of the Code. Such organizations are exempt from
taxation; but unlike their section 501(c)(3) counterparts,
contributions to them are not deductible. . . . Although a
section 501(c)(4) organization is also subject to the ban on
intervening in political campaigns . . . it may form a
political action committee ``PAC'') that would be free to
participate in political campaigns. . . . (``an organization
described in section 501(c) that is exempt from taxation under
section 501(a) may, [if it is not a section 501(c)(3)
organization], establish and maintain such a separate
segregated fund to receive contributions and make expenditures
in a political campaign.'')
At oral argument, counsel for the Church doggedly maintained
that there can be no ``Church at Pierce Creek PAC.'' True, it
may not itself create a PAC; but as we have pointed out, the
Church can initiate a series of steps that will provide an
alternate means of political communication. . . .
(Citations omitted.)
II. H.R. 2357 Unconstitutionally Prefers Religious Viewpoints
In addition to fixing a statute that is not broken-and in vague
language that undermines, not advances, its stated purpose-H.R. 2357 is
flat out unconstitutional. Although that is not the most serious flaw
with the bill, it ought to be enough to condemn it. The House of
Worship Political Speech Protection Act is a naked preference for
religious political speech over competing secular political speech.
Under any view of the Establishment, Free Speech and Press Clauses,
such a preference is unconstitutional. No view of the Constitution
would allow government to subsidize a religious group to oppose
candidates who support gambling on the ground that the Bible is opposed
to it, but deny a subsidy to a secular organization to oppose such
candidates on secular grounds.
The thrust of the Supreme Court's decisions over the last twenty
years has been to equate religious and secular speech, and to insist
that identical rules apply to both. See, e.g., Good News Club v.
Milford Central School District, 121 S.Ct. 2093 (2001); Lamb's Chapel
v. Center Moriches School District, 508 U.S. 949 (1994); Rosenberger v.
Bd. of Rectors, University of Virginia, 515 U.S. 819 (1995); Board of
Educ. Westside Community Schools v. Mergens, 496 U.S. 226 (1990);
Larsen v. Valente, 456 U.S. 228 (1982). Many of those organizations and
individuals who have testified in support of H.R. 2357 have devoted
much energy to establishing that legal principle, insisting all the
while that they do not seek any advantage for religious speech, but
only to end discrimination against it. That position and support for
H.R. 2357's preference for religious political speech cannot be
squared.
The case most on point, dealing with a statute almost on all fours
with H.R. 2357, is Texas Monthly v. Bullock, 489 U.S. 1 (1989). There
the Supreme Court invalidated a sales tax exemption for religious but
not secular periodicals. The narrowest holding of the Court is stated
in the concurring opinion of Justice O'Connor, who wrote:
In this case, by confining the tax exemption exclusively to
the sale of religious publications, Texas engaged in
preferential support for the communication of religious
messages. Although some forms of accommodation religion are
constitutionally permissible . . . this one surely is not. A
statutory preference for the dissemination of religious ideas
offends our most basic understanding of what the Establishment
Clause is all about and hence is constitutionally intolerable.
(Citations omitted)
In a separate concurrence, Justice White put the result on
grounds of freedom of the press: The Texas law at issue here
discriminates on the basis of the content of publications: it
provides that ``[p]eriodicals . . . that consist wholly of
writings promulgating the teaching of (a religious faith) . . .
are exempted'' from the burdens of the sales tax law. . . .
Thus, the content of a publication determines whether its
publisher is exempt or nonexempt. Appellant is subject to the
tax, but other publications are not because of the message they
carry. This is plainly forbidden by the Press Clause of the
First Amendment.
Subsequent to Texas Monthly, courts have uniformly invalidated
sales tax exemptions for religious periodicals only on one or the other
of these grounds. ACLU v. Crawford,______F.Supp.2d______(E.D. La.
2002); Haller v. Commonwealth, 556 Pa. 289, 728 A.2d 351 (1999);
Ahlburn v. Clark, 728 A.2d 449 (R.I. 1999); Thayer v. South Carolina,
307 S.C. 6, 413 S.E.2d 810 (1997); Finlator v. Powers, 902 F.2d 1158
(4th Cir. 1990). Cf. In Re Springmoor, 479 N.C. App. 184,
479 S.E.2d 795 (1997) (invalidating exemption of only religiously
operated nursing homes from real property taxation). By a parity of
reasoning, allowing a religious exempt organization greater leeway to
engage in political endorsements than competing secular organizations
is unconstitutional.
The governing constitutional principle is neither technical nor
obscure. It goes to the heart of the constitutional arrangements for
the relationship between church and state. The government is required
to be neutral between religious and secular viewpoints, given the
Establishment, Free Speech and Free Press Clauses. Current tax law
maintains that balance. So would a law permitting all exempt
organizations to intervene in campaigns, a law we do not think
desirable. H.R. 2357, however, upsets the constitutional balance
exactly as would a law that permitted secular but not religious exempt
organizations to endorse candidates. H.R. 2357 is unvarnished viewpoint
discrimination of the kind the Supreme Court has repeatedly condemned.
The American Jewish Congress does not subscribe to the view that
government may accommodate religion only where the Free Exercise Clause
compels exemption, a very narrow class of cases subsequent to the
unfortunate decision in Employment Division v. Smith, supra. Smith
itself disclaims any such rule. But the sine qua non of permissible
accommodation is a substantial governmental burden on religious
practice. Here, there is none.
There is surely no burden on religious organizations that does not
equally apply to their secular counterparts. Remedying one but not the
other burden invidiously discriminates against speech on the basis of
its viewpoint. Such discrimination violates core First Amendment,
principles.
III. H.R. 2357 Is Extraordinarlily Poor Public Policy
If there is one lesson to be learned from repeated efforts at
campaign finance reform, it is that political parties will accommodate
themselves to whatever fund raising opportunities the law allows.
Rather than politics driving fund raising, fund raising has come to
drive politics. So it was with PAC's, so it was with soft money and so
it would be if religious organizations, alone among exempt
organizations, could intervene in political campaigns with ``cheaper''
tax-deductible dollars while secular competitors had to pay for their
endorsements with more ``expensive'' after-tax dollars.
Passage of H.R. 2357 would inevitably cause politics to be recast
and redrawn along religious lines, not as they are now, in an indirect,
unspoken and therefore uncertain, demographic sense (evangelicals are
conservative, Jews liberal, Catholic swing voters, and the like), but
explicitly, as politicians and parties aligned and realigned themselves
to gain favor of religious groups and access to their tax exempt
dollars. That would be a most unfortunate and unhappy development.
With a few exceptions, our Nation has avoided a religiously
centered politics, even as it has allowed religious groups full freedom
to express themselves on the issue of the day. To be sure, Alexander
Hamilton unsuccessfully tried to organize a Christian Party to oppose
Thomas Jefferson, the short lived Know-Nothing party was called into
being by Protestants to limit the power of Catholics, and the National
Reform Association unsuccessfully attempted to amend the Constitution
so that it acknowledged the nation's Christian heritage.
These isolated examples call attention to the secular and
ecumenical cast of American political parties. Surely for all of the
twentieth century and continuing into the twenty-first, this country
has harbored no serious, significant or substantial political party
whose platform was religious, whose candidates and leaders were
selected because they held approved religious beliefs or designated
clerical office, and whose members shared a common set of religious
dogmas or rituals.
It takes no more than a glance around the world to see how
fortunate we have been. In countries with religiously based political
parties and a politics riven with religious debate and differences,
parties compete over which one more vigorously advances God's agenda.
Those differences are difficult to the point of the impossible to
compromise. Who dares compromise God's command?
Other countries, to avoid this evil, have gone to the opposite
anti-clerical extreme, substantially restricting the liberty of
religious groups to address political issues and to participate in
politics. The former countries are condemned to instability and
internal division. The latter are deprived of the moral insight
religion brings to bear on public issue. Neither is an attractive
alternative. Neither is the American way.
Whether or not H.R. 2357 would, as we predict, lead to the creation
of religious parties, it would surely lead existing parties to jockey
for the favor of organized religious groups who could provide the
dollars modern political campaigns require. The results would be
unhappy, and far worse than whatever shortcomings inhere in the present
system.
IV. The Internal Revenue Service Should Clarify The Law
Although H.R. 2357 is unnecessary, unwise and unconstitutional,
there is substantial room for improvement in the way that the Internal
Revenue Service enforces Section 501(c)(3). Enforcement of the
restriction on intervening in campaigns is hardly aggressive and
universal. Only the most egregious and public of violations result in
enforcement actions. Under such a lax enforcement policy, it is not
surprising that those ``caught'' believe they are the victims of
selective prosecution. Another consequence of under-enforcement is that
conscientious and law abiding organizations are often asked by their
members to intervene in campaigns in ways that competing exempt
organizations do with apparent impunity.
One reason for the relatively relaxed enforcement-beyond the
Service's understandable and commendable reluctance to challenge the
speech of religious and other not-for-profit organizations over rules
some of whose parameters are uncertain-is that the penalties for a
violation are so draconian. Loss of tax exemption is the organizational
equivalent of a death sentence. It had been hoped that the intermediate
sanctions of 26 U.S.C. Sec. 4495 might result in some leeway for the
Internal Revenue Service and hence more aggressive enforcement of the
no-intervention rule, but this has so far not happened. Perhaps
Congress ought to consider anew the question of graduated penalties for
violations of the anti-intervention rules.
Second, a search of the Internal Revenue Service's website turned
up no publication setting out in plain English the Internal Revenue
Service's positions on what constitutes influencing legislation or
endorsing or opposing candidates. Some while ago, the Internal Revenue
Service did publish a helpful booklet for religious groups (as it does
for veterans organizations) but it was not widely disseminated and it
cannot now be found on the IRS website (or at least the undersigned
cannot find it, which may be a very different thing).
The Service ought to consider ways to make its views on these
issues more widely and easily available to not-for-profits and
especially smaller and less well-counseled religious institutions.
Doing so would not eliminate all disputes about the scope of Section
501(c)(3), but it would eliminate much of the chilling effect generated
by uncertainty and ignorance. Increased clarity would, we believe,
dispel many of the grievances giving rise to H.R. 2357.
Although various Revenue Rulings and internal training materials
(the latter are not binding law) make clear that a Section 501(c)(3)
organization which has a long-standing position on a public policy
issue need not refrain from expressing that view because a campaign is
underway, many organizations believe they are condemned to silence
during the never-ending campaign season. Similarly, the Internal
Revenue Service has offered views on the much mooted and recurring
question of when employees and lay leaders of not-for-profit
organizations can speak out in support of or opposition to candidates
even though their speech may be identified with their organization (can
a Rabbi announce personal political preference from the pulpit?), but
it is apparent that its views are not widely known.
Without endorsing every one of its interpretations, it seems fair
to say that the IRS' views on these subjects are on the whole
reasonable and practical-and go far to meeting the objections which
have given rise to the present legislative proposal. Were they better
known, there would be less impetus for legislation such as HR 2357. The
IRS should cure this problem on its own.
Conclusion
The Committee should not favorably report H.S. 2357. It should
reexamine whether religious groups should be permitted to elect under
the Conable rules (Section 501(h)). It should also consider whether
more moderate penalties for violations would lead to better and more
equal enforcement of Section 501(c)(3) restrictions. Finally, the IRS
should undertake to make its understanding of the restrictions which
accompany 501(c)(3) status broadly accessible.
Statement of the Anti-Defamation League, New York, New York
Opposing HR 2357 (``Houses of Worship Political Speech Protection
Act'') and H.R. 2931 (``The Bright Line Act'')
The Anti-Defamation League has long been a lead voice advocating
for the separation of church and state. Founded in 1913 to ``to stop
the defamation of the Jewish people and to secure justice and fair
treatment to all citizens alike,'' ADL has worked tirelessly to fight
anti-Semitism, racism, and bigotry (including religious intolerance),
to advocate for good will and mutual understanding among Americans of
all creeds and races, and to safeguard the rights and liberties of all
Americans. To this end, and to the end of the general stability of our
democracy, ADL strongly advocates for the separation of church and
state and the right to the free exercise of religion.
ADL opposes H.R. 2357 (``Houses of Worship Political Speech
Protection Act ``), introduced by Representative Jones, Jr., and H.R.
2931 (``The Bright Line Act''), introduced by Representative Crane.
These legislative initiatives would amend federal tax law to permit
houses of worship to utilize tax-exempt contributions and other
resources to fund partisan political activity and candidates for
political office.
Both bills are unconstitutional because each would give religious
organizations, specifically houses of worship, an advantage over non-
religious organizations simply because they are religious
organizations. The bills fail each of the three most commonly used
tests that the Supreme Court has articulated to determine whether a
statute runs foul of the Establishment Clause:
1) Under the standard articulated in Lemon v. Kurtzman (403
U.S. 602 (1971)), a statute is unconstitutional if it lacks a
secular purpose, or if it has the primary effect of advancing
religion, or if it fosters excessive governmental entanglement
with religion. A statute which expressly selects houses of
worship for special treatment (and gives them benefits that
other, non-religious non-profits do not have) plainly lacks a
secular purpose and advances religion over non-religion.
Statutes that give special advantages to religious
organizations simply do not pass constitutional muster. See
Board of Ed. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512
U.S. 687 (1994)
2) Under the no-endorsement standard, government may not
advance religion over non-religion. The Constitution
``preclude[s] government from conveying or attempting to convey
a message that religion or a particular religious belief is
favored or preferred.'' Wallace v. Jaffree, 472 U.S.38 at 70
(1985) (O'Connor, J., concurring in judgment)
3) Under the neutrality standard, government must be
``neutral'' among religions and between religion and non-
religion. Everson, 330 U.S. 1 at 18 (1947). See also Abington
School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560,
1615, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring) (``The
fullest realization of true religious liberty requires that
government . . . effect no favoritism among sects or between
religion and nonreligion'').
The plain effect of these bills is to give houses of worship--
religious institutions--a special advantage over non-religious non-
profits. It is a cornerstone of Establishment Clause jurisprudence that
the government cannot prefer religion over non-religion. Therefore,
these bills are unconstitutional and we urge Congress to reject them.
These bills, especially H.R. 2357, the House of Worship Free Speech
Act, suffers from another failing as well. Supporters of these measure
wrongly argue that, under current law, religious viewpoints in
particular are being muzzled in the public arena. That is simply not
true. Houses of worship, like other 501(c)(3) non-profit organizations,
are permitted to engage in a wide range of non-partisan voter
participation and voter education initiatives. All 501(c)(3) non-
profits, however, are expressly prohibited from the sort of politicking
that these bills would allow. To identify religious organizations as
being unfairly silenced is both unfair and disingenuous.
Baptist Joint Committee
Washington, DC 20002-5797
May 13, 2002
The Honorable Amo Houghton, Jr.
United States House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
You are being asked to consider legislation that would allow houses
of worship explicitly to endorse or oppose candidates for public
office, and even contribute money and other resources to candidates and
political parties, while maintaining their tax-exempt status. We write
to you in order to express our opposition to H.R. 2357 and H.R. 2931.
The ``Houses of Worship Political Speech Protection Act'' and ``The
Bright-Line Act'' may sound good at first but would ultimately pervert,
not protect, houses of worship. The First Amendment already creates
protection for houses of worship by setting boundaries between church
and state. While we agree that houses of worship need to speak out on
the social and moral issues of the day, they already have that freedom.
Preachers can and do speak out with impunity, even from the pulpit,
on any issue, and houses of worship may engage in some lobbying to
advocate moral/ethical positions. Houses of worship may encourage good
citizenship among their members by launching voter registration and
education projects, conducting a nonpartisan forum for the candidates
and distributing the answers to candidate questionnaires. Pastors and
other church leaders, as individuals, can participate in the electoral
political process as much as they wish, but nonprofits cannot
participate in electioneering without jeopardizing their tax-exempt
status under Section 501(c)(3).
Why is it so bad to allow houses of worship to endorse candidates
or give political contributions? Electioneering by churches would be
highly divisive. For religious leaders to seek to endorse and
contribute money to candidates on behalf of the entire house of worship
would be to drop a bombshell in the sanctuary of most congregations,
especially Baptist churches. Worshipers in the pew do not need or want
religious leaders telling them how to vote or funneling tithes to the
coffers of political parties.
Electioneering by houses of worship would compromise their
prophetic witness. Credibility and integrity of congregations would
suffer with bad decisions of candidates they endorsed. Partisan groups
would have increased incentives to use congregations as a conduit for
political activity and expenditures, thus diminishing the distinctive
role of the church.Houses of worship could be turned into virtual
political action committees. These bills would provide an irresistible
loophole for some to deduct political contributions by funneling them
through houses of worship. It would become the preferred way to make
political donations. This would be a step backward in the quest for
campaign finance reform and raise the stakes for exploitation of the
good name and resources of houses of worship.
In short, these bills would do houses of worship no favors. Anytime
the wall of separation between church and state is breached, religious
liberty is threatened. These bills would compromise church autonomy,
turn pulpit prophets into political puppets and politicize our houses
of worship.
We encourage you to oppose ``The Houses of Worship Political Speech
Protection Act'' and ``The Bright-Line Act.''
Sincerely,
J. Brent Walker
Executive Director
K. Hollyn Hollman
General Counsel
______
RELIGIOUS LEADERS SAY: OPPOSE H.R. 2357 & H.R. 2931
Dear Representative,
We, the undersigned religious and denominational organizations, are
writing to urge you to oppose both H.R. 2357, ``The Houses of Worship
Political Speech Protection Act,'' introduced by Rep. Walter Jones, and
H.R. 2931, ``The Bright Line Act,'' introduced by Rep. Phillip Crane.
Both of these bills would lead to partisan political activity in our
nation's houses of worship.
Current federal law states that houses of worship, like other
501(c)(3) organizations, cannot legally engage in partisan political
activities and retain their tax-exempt status. This provision of
federal law has served as a valuable safeguard for the integrity of
both religious institutions and the political process. Both H.R. 2357
and H.R. 2931 would lift important safeguards, and allow houses of
worship to use their tax-exempt contributions for political purposes
and to endorse candidates.
Religious leaders, denominational offices and faith-based
organizations are against H.R. 2357 and H.R. 2931 for many ethical
reasons:
Current law upholds the integrity of houses of
worship. Churches, synagogues, temples and mosques should not
be used as political headquarters or as a means of partisan
fundraising for political activities. Tying churches to
partisan activity demeans the institutions from which so many
believers expect unimpeachable decency.
This bill is unwanted and unneeded by America's
clergy. In a recent Gallup/Interfaith Alliance Foundation poll,
a full 77% of clergy were opposed to their fellow clergy
endorsing political candidates. Another poll conducted by The
Pew Research Center for the People and the Press and The Pew
Forum on Religion and Public Life, found that 70% of Americans
feel that houses of worship should not come out in favor of one
candidate over another during political elections.
The bill is predicated on false assumptions about
existing law. Supporters of these bills have argued that their
enactment is necessary to allow religious leaders to speak out
on issues of interest to their congregations. The reality is
that religious leaders have an absolute right to use their
pulpit to address the moral issues of the day. The only things
tax-exempt houses of worship may not do is endorse or oppose
candidates, or use their tax-exempt donations to contribute to
partisan campaigns. Current law simply limits groups from being
both a tax-exempt ministry and a partisan political entity.
This bill would open a dramatic loophole in the
nation's campaign finance laws. Donations to houses of worship
are tax deductible because the government assumes that their
work is contributing to the common good of society, not a
political party or a partisan campaign. As such, contributions
to churches are tax deductible and donations to political
candidates and parties are not. Therefore, these bills would
create a significant new loophole in our nation's campaign
finance laws with serious ethical and legal implications.
For these reasons, we urge you to oppose H.R. 2357 and H.R. 2931.
Sincerely,
American Jewish Committee
American Jewish Congress
Anti-Defamation League
Baptist Joint Committee on Public Affairs
Central Conference of American Rabbis
Church of the Brethren Washington Office
Council of Khalistan
Friends Committee on National Legislation (Quaker)
General Board of Church and Society, United Methodist Church
Hadassah, the Women's Zionist Organization of America
Interfaith Alliance Foundation, The
NA'AMAT USA
National Council of Churches of Christ in the USA
National Council of Jewish Women
Presbyterian Church (USA), Washington Office
Seventh-day Adventist Church, General Conference
Soka Gakkai International--USA Buddhist Association
The Congress of National Black Churches
Union of American Hebrew Congregations
Unitarian Universalist Association
United Church of Christ Justice and Witness Ministries
Statement of James Bopp, Jr., Bopp, Coleson & Bostrom,
Terre Haute, Indiana
Thank you for the opportunity to submit written comments regarding
the Internal Revenue Code Section 501(c)(3) requirements for religious
organizations and in support of H.R. 2357, the Houses of Worship
Political Speech Protection Act, and H.R. 2931, the Bright-Line Act of
2001.
I am a practicing attorney with the law firm of Bopp, Coleson &
Bostrom in Terre Haute, Indiana. 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.
Introduction
I am pleased to support H.R. 2357, the Houses of Worship Political
Speech Protection Act, and H.R. 2931, the Bright-Line Act of 2001. The
problem addressed by these resolutions 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 houses of worship. 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 houses of worship.
This bias against houses of worship has been codified in Section
501(c)(3) by the prohibition against activities considered ``political
intervention'' broadly interpreted and enforced by the Internal Revenue
Service. The root of the current problem with the prohibition against
political intervention by churches and other organizations exempt under
IRC Sec. 501(c)(3) is: (1) the vague and overbroad definition of
``political intervention;'' (2) the draconian penalties for violation
of the prohibition; and (3) the resulting chilling effect of the
prohibition on churches who want to speak out about the social and
moral issues facing our nation.
I. The vague and overbroad definition of ``political intervention''
includes much more than the use of express words in favor of or
opposition to a candidate for public office.
Section 501(c)(3) tax exempt status is limited to organizations
``which do not participate in, or intervene in (including the
publishing or distributing of statements), any political campaign on
behalf of (or in opposition to) any candidate for public office''
(emphasis added). Treasury Regulation Sec. 501(c)(3)-1(c)(3)(iii)
provides:
The term candidate for public office means an individual who
offers himself, or is proposed by others, as a contestant for
an elective public office, whether such office be national,
state, or local. Activities which constitute participation or
intervention in a political campaign on behalf of or in
opposition to a candidate include, but are not limited to, the
publication or distribution of printed statements or the making
of oral statements on behalf of or in opposition to such a
candidate.
The prohibition on participation or intervention in a political
campaign language has been shortened for quick reference in customary
usage to the phrase ``political intervention.''
A. What is ``political intervention''?
``Political intervention'' constitutes any activity ``influencing
or attempting to influence the selection, nomination, election, or
appointment of any individual to any Federal, State, or local public
office or office in a political organization, or the election of
Presidential or Vice Presidential electors.'' 26 U.S.C. Sec. 527(e)(2).
``All activities that are directly related to and support the
process of influencing the selection, nomination, election or
appointment of any individual to public office and office in a
political organization'' are political intervention. Treas. Reg.
Sec. 1.527-2(c)(1).
Although the Federal Election Commission has adopted a bright line
test of what constitutes ``political intervention,'' the IRS has not.1
Instead of a bright line test, the IRS has adopted a ``facts and
circumstances'' test: ``[I]t is not feasible for the Service to adopt
the FEC `express advocacy' standard,'' because ``[t]he language of IRC
501(c)(3) indicated a much broader scope to the concept of
participation or intervention in a political campaign.'' Thus, ``there
is no bright-line test,'' and ``all the facts and circumstances must be
considered.'' Judith E. Kindell & John Francis Reilly, Election Year
Issues, in Exempt Organization Continuing Professional Education
Technical Instruction Program for FY 2002 344, 346, 349 (2001)
(hereinafter ``Election Year Issues'').
It has even been acknowledged that educational activities may be
political intervention when using such a vague and overbroad test:
``Educating the public is not inherently inconsistent with the activity
of impermissibly intervening in a political campaign.'' Treasury Advice
Memorandum 8936002.
B. Specific activities.
For example, voter registration and GOTV activities are considered
``political intervention'' by the IRS unless they are nonpartisan, done
without regard to voter's political preference, do not name any
candidate or do not favor one candidate over another, do not name a
political party, and the materials only urge registering and voting.
The preparation and distribution of voter guides is ``political
intervention'' unless they address a ``wide variety'' of issues, the
position of the organization on the issues is not indicated, and the
voter guides are distributed broadly to the general public, not a
target audience. Revenue Ruling 78-248, 1978-1 C.B. 154; Election Year
Issues at 370-72.
Candidate forums are only permissible voter education if ``all
legally qualified persons'' are included, a broad range of issues are
covered, questions are posed by ``a nonpartisan, independent panel of
knowledgeable persons,'' candidates are given an equal opportunity to
present their views, and the moderator states that the views expressed
are the views of the candidates, not the organization. Revenue Ruling
86-95, 1986-2 C.B. 73; Election Year Issues at 372-75.
Even educational activities may be deemed ``political
intervention'' if there is a use of ``code words'' like
``conservative,'' ``liberal,'' ``pro-life,'' ``pro-choice,'' ``anti-
choice,'' ``Republican,'' or ``Democrat.'' Election Year Issues at 345.
Further, any ``coordination'' of an otherwise permitted activity with a
political committee or candidate constitutes ``political
intervention.'' Treasury Advice Memorandum 9117001.
It is obvious that the expression of an opinion on any matter of
public concern may be deemed ``political intervention'' when such a
vague and overbroad definition is used. When political issues are
inherently moral issues as well, houses of worship are effectively
excluded from the debate by such a vague and overbroad rule. When the
Internal Revenue Service uses an ``all the facts and circumstances''
test, the likelihood that any communication addressing social and moral
issues will be found to be ``political intervention'' is substantial.
II. There are draconian penalties for violation of the prohibition.
The prohibition against ``political intervention'' by organizations
that are tax exempt under Section 501(c)(3) of the Internal Revenue
Code is absolute. Not only will a church that is deemed to have engaged
in activities constituting ``political intervention'' lose its tax
exempt status, there are taxes to be paid.
In 1987, Congress enacted several new provisions concerning the
political campaign prohibition for 501(c)(3) organizations. The first
of these was IRC 4955. Section 4955(a)(1) provides for an initial tax
of ten percent of each political expenditure. IRC 4955(b)(1) imposes an
additional tax of 100 percent of each political expenditure previously
taxed and not corrected within the taxable period. There is no upper
limit on the tax that can be levied on the organization. IRC 4955(a)(2)
imposes a tax of 2\1/2\ percent of the political expenditure on any
``organization manager'' (e.g., priests, pastors and other officers of
the organization) who agreed to make a political expenditure.
Organizational managers who refuse to agree to all or part of the
correction are subject to a tax of fifty percent of the political
expenditure. Election Year Issues at 355.
Congress enacted Section 4955 because revocation for violation of
the prohibition on political campaign activity was viewed by some as an
inappropriate remedy in two situations. First, the penalty of
revocation was disproportionate to the violation in cases where the
expenditure was small, the violation was unintentional, and the
organization subsequently had adopted procedures to assure that similar
expenditures would not be made in the future. Second, in some cases,
revocation would be an ineffective remedy, particularly if the Section
501(c)(3) organization ceased operations after it diverted all of its
assets to improper purposes. Election Year Issues at 354.
Although Section 4955 penalties may be used as a type of
``intermediate sanctions,'' they may also be used in addition to
revocation, as an additional deterrent. Congress also enacted Section
6852, which provides that if such a violation occurs, the Service may
immediately determine the amount of income and Section 4955 tax due
from the Section 501(c)(3) organization. Section 7409 grants authority
to the Service to seek an injunction against a 501(c)(3) organization
that flagrantly violates the political campaign prohibition to prevent
further political expenditures by the organization.
Thus, the remedies include revocation of exemption, a ten percent
tax, a 100 percent tax, a 2\1/2\ percent tax against officers, an
immediate assessment of tax due, and injunction. These remedies have a
chilling effect on churches that wish to address social and moral
issues.
III. The result of the prohibition is a chilling effect on churches who
want to speak out about the social and moral issues facing our nation.
The First Amendment states: ``Congress shall make no law . . .
abridging the freedom of speech, or of the press, or of the right of
the people peaceably to assemble, and to petition the Government for a
redress of grievances.'' The First Amendment protects the four
``indispensable democratic freedom[s].'' Thomas v. Collins, 323 U.S.
516, 529-30 (1945).
Political expression is ``at the core of our electoral process and
of the First Amendment freedoms.'' Williams v. Rhodes, 393 U.S. 23, 32
(1968). Further, ``[I]t can hardly be doubted that the constitutional
guarantee [of the First Amendment] has its fullest and most urgent
application precisely to the conduct of campaigns for political
office.'' Buckley v. Valeo, 424 U.S. 1, 14-15 (1976). ``[T]here is
practically universal agreement that a major purpose of [the First]
Amendment was to protect the free discussion of governmental affairs, .
. . of course includ[ing] discussions of candidates.'' Mills v.
Alabama, 384 U.S. 214, 218 (1966).
Section 501(c)(3), as currently interpreted, effectively silences
houses of worship by prohibiting them from addressing those social and
moral issues that are at the center of public policy debate. In other
words, Section 501(c)(3) only permits churches to discuss moral issues
that don' t have any impact on current public policy issues. Such a
rule marginalizes people of faith and makes houses of worship
irrelevant to public discourse and debate. It is inherently
discriminatory.
Even if very carefully orchestrated, any communication that might
have an impact on an issue of public policy may be deemed ``political
intervention'' by the IRS under current law. All that is necessary is
that a communication be found by the IRS to ``contain some relatively
clear directive that enables the recipient to know the organization's
position on a specific candidate or slate of candidates.'' Election
Year Issues at 345-46. No wonder so many clergy and churches avoid
addressing any social or moral issues during an election year. No
matter what the church's communication is, it can be construed under
the ``all the facts and circumstances'' test to be supporting all
candidates who share the same or similar view, and opposing all
candidates who hold a different view.
IV. How the proposed legislation will change Section 501(c)(3)
In order to properly understand the effect of the proposed changes
on Section 501(c)(3) we must first look at the history of Section
501(c)(3).
A. The history of Section 501(c)(3)
Prior to 1954, there was no statutory provision prohibiting
organizations described in the antecedents of IRC 501(c)(3) from
engaging in political campaign activities. From the earliest days of
our Republic churches have played a key role in public life. Where
moral issues and political issues collided, as with the abolitionist
movement, churches were frequently the forum for public discussion and
debate. Many sermons were preached on such subjects central to our
national discourse and debate.
The current political campaign prohibition has a vague but
unenacted antecedent. What eventually became the Revenue Act of 1934,
under which the lobbying restriction of IRC 501(c)(3) was first
enacted, at one time contained a provision extending the prohibition to
``participation in partisan politics.'' S. Rep. No. 73-558, 73d Cong.,
2d Sess. 26 (1934). The provision, however, was deleted in conference,
so that only the lobbying restriction remained. H.R. Conf. Rep. No. 73-
1385, 73d Cong., 2d Sess. 3-4 (1934). In explaining its deletion,
Representative Samuel B. Hill stated: ``We were afraid this provision
was too broad.'' 78 Cong. Rec. 7,831 (1934) (emphasis added); Election
Year Issues at 336. A fear that it now appears was well founded.
During the Senate consideration of what became the Revenue Act of
1954, Lyndon Johnson, then Senate Majority Leader, added a floor
amendment to provide that IRC 501(c)(3) organizations 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.'' Johnson stated ``. . . [t]his amendment
seeks to extend the provisions of section 501 of the House bill,
denying tax-exempt status to not only those people who influence
legislation but also to those who intervene in any political campaign
on behalf of any candidate for public office.'' 100 Cong. Rec. 9,604
(1954). The amendment was accepted; no debate or discussion took place.
The Conference Report (H.R. Conf. Rep. No. 83-2543, 83d Cong., 2d Sess.
(1954) contains no further discussion of the amendment. Election Year
Issues at 337.
In 1969, a number of provisions were enacted concerning the
treatment of private foundations. Under one provision, an initial tax
in an amount equal to ten percent of each taxable expenditure and an
additional 100 percent tax on each taxable expenditure previously taxed
and not corrected within the taxable period was imposed on private
foundations. In addition, taxes were imposed on foundation managers who
agreed to the making of the taxable expenditure. IRC 4945. A taxable
expenditure included any amount paid or incurred by a private
foundation to influence the outcome of any specific public election or
to directly or indirectly carry on any voter registration drives,
unless certain requirements were met. IRC 4945(d)(2); Election Year
Issues at 337.
In 1987, Congress again amended the law applicable to charitable
organizations, this time specifically focusing on the prohibition on
political campaign activity. Congressional concern appears to have been
triggered by two occurrences. First, in 1986, an organization then
exempt under IRC 501(c)(3), the National Endowment for the Preservation
of Liberty, was reported to have intervened in Congressional campaigns,
opposing the reelection of members who had not supported aid to the
Nicaraguan Contras. Second, questions had been raised about the use of
ostensibly educational 501(c)(3) organizations by politicians to
promote their candidacy or potential candidacy. After hearings held by
this Subcommittee and after it made its recommendations, IRC 501(c)(3)
was amended to clarify that the prohibition on political campaign
activity applied to activities in opposition to, as well as on behalf
of, any candidate for public office, in accordance with the existing
interpretations of the prohibition in the regulations. Election Year
Issues at 338.
B. How would H.R. 2357 change Section 501(c)(3)?
If H.R. 2357 were enacted, Section 501(c)(3) would be revised as
follows:
(c) List of exempt organizations.--The following
organizations are referred to in subsection (a):
(3) Corporations, and any community chest, fund, or
foundation, organized and operated exclusively for
religious, charitable, scientific, testing for public
safety, literary, or educational purposes, or to foster
national or international amateur sports competition .
. . and except in the case of an organization described
in section 508(c)(1)(A) (relating to churches), which
does not participate in, or intervene in (including the
publishing or distributing of statements), any
political campaign on behalf of (or in opposition to)
any candidate for public office and, in the case of an
organization described in section 508(c)(1)(A), no
substantial part of the activities of which is
participating in, or intervening in (including the
publishing or distributing of statements), any
political campaign on behalf of (or in opposition to)
any candidate for public office.
Although the bill would not change the vague and overbroad definition
of ``political intervention,'' it would exempt churches from the
absolute prohibition, and establish a ``no substantial part of the
activities'' standard for political intervention. This is identical
language to the restriction on legislative lobbying activities, thus it
utilizes familiar statutory language and interpretative precedents. It
is not a bright line test, but a test that would take the chill out of
occasional church pronouncements on social and moral issues, and allow
an insubstantial amount of political activities by churches.
C. How would H.R. 2931 change Section 501(c)(3)?
H.R. 2931, the Bright-Line Act of 2001, would also give houses of
worship some breathing room. It would add a new subsection to Section
501(c)(3):
(p) EXPENDITURES BY CHURCHES, ETC., TO INFLUENCE LEGISLATION
OR PARTICIPATE IN CAMPAIGN ACTIVITIES--
(1) EXPENDITURES TO INFLUENCE LEGISLATION--An
organization to which this subsection applies shall be
denied exemption from taxation under subsection (a)
because a substantial part of the activities of such
organization consists of carrying on propaganda, or
otherwise attempting, to influence legislation, but
only if such organization normally makes lobbying
expenditures (as defined in section 4911(d)) for each
taxable year in excess of an amount equal to 20 percent
of such organization' s gross revenues for such year.
(2) EXPENDITURES TO PARTICIPATE IN CAMPAIGNS--An
organization to which this subsection applies shall be
denied exemption from taxation under subsection (a)
because such organization participates in, or
intervenes in (including the publishing or distributing
of statements), any political campaign on behalf of (or
in opposition to) any candidate for public office, but
only if such organization normally makes expenditures
for such purpose for each taxable year in excess of an
amount equal to 5 percent of such organization' s gross
revenues for such year.
(3) AGGREGATE LIMIT--An organization to which this
subsection applies shall be denied exemption from
taxation under subsection (a) if the aggregate of the
expenditures described in paragraph (1) and the
expenditures described in paragraph (2) which such
organization normally makes for each taxable year
exceeds an amount equal to 20 percent of such
organization's gross revenues for such year.
(4) GROSS REVENUES--For purposes of this subsection,
the term `gross revenues' means the sum of--
(A) the organization's gross income for the
taxable year, and
(B) the aggregate contributions and gifts
received by such organization during such year.
(5) ORGANIZATIONS TO WHICH SUBSECTION APPLIES--This
subsection shall apply to any disqualified organization
(as defined in subsection (h)(5)) which is described in
subsection (c)(3).
(6) AFFILIATED ORGANIZATION--If, for any taxable
year, 2 or more organizations to which this subsection
applies are members of an affiliated group of
organizations (as defined in section 4911(f)(2)----
(A) paragraphs (1), (2), (3), and (4) shall
be applied by treating such group as 1
organization, and
(B) if such group exceeds the expenditure
limitation of paragraph (1), (2), or (3), each
organization to which this subsection applies
which is a member of such group shall be
treated as not described in subsection (c)(3).
The preceding sentence shall not be applied so as to
treat an organization which is not (without regard to
the preceding sentence) exempt from tax by reason of
paragraph (1), (2), or (3) as being so exempt.
(b) EFFECTIVE DATE--The amendment made by subsection (a)
shall apply to taxable years beginning after the date of the
enactment of this Act.
As stated in its short title, the primary feature of this
resolution is to provide a bright line test for compliance. Houses of
worship would be permitted to use 20% of their gross receipts for
lobbying, and 5% of their gross receipts for activities considered
``political intervention.'' Although the vague and overbroad definition
of ``political intervention'' is not changed by this resolution, it
does give churches some breathing room before loss of tax exemption, or
penalties, would apply.
A secondary feature of this resolution is the ``affiliated
organizations'' provision in subsection (6). This provision would
provide additional protection to individual churches that are
affiliated with other similarly exempt organizations. When an
individual church's gross receipts and political expenditures would
fail the proposed bright line test, the affiliation provision would
require the examiner to use the grand totals of gross receipts and
political expenditures of all affiliated organizations. This would
provide remarkable protection for churches in denominations, that would
be unavailable to unaffiliated churches. It would also provide an
increased safe harbor for churches with affiliated charitable
organizations, schools, missions, or other affiliated organizations
under Section 4911(f)(2).
Conclusion
It is time to stop the IRS and others from using Section 501(c)(3)
to silence houses of worship. H.R. 2357 and H.R. 2931 will go a long
way in accomplishing that goal. Clergy and churches should be able to
make public statements about social and moral issues without threat of
investigation, loss of tax exempt status, or assessment of taxes and
penalties.
H.R. 2357 permits an insubstantial amount of activity that would
otherwise be prohibited as ``political intervention.'' It allows
churches to discuss moral issues without threat of sanctions by the
IRS. The threshold established by H.R. 2357, namely ``no substantial
part of the activities,'' is the same standard applied to legislative
lobbying and is sufficiently clear and well established as to remove
the threat of sanctions for public communications on social and moral
issues by churches.
H.R. 2931 provides a bright line test that would make the
determination of a violation more objective. By providing an explicit
limit of 5% of gross receipts by a house of worship and its affiliated
organizations it may insulate clergy and churches from being singled
out for investigation and penalties for a single act considered
``political intervention'' under the ``all facts and circumstances''
test of the Internal Revenue Service.
Both resolutions return clergy and houses of worship to some
measure of the freedom of speech they enjoyed from the founding of this
nation to 1954 when the absolute prohibition of ``political
intervention'' went into effect.
For these reasons, I support the Houses of Worship Political Speech
Protection Act and the Bright-Line Act of 2001.
STATEMENT OF THE HON. CHET EDWARDS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF TEXAS
Chairman Houghton, Ranking Member Coyne, and Members of the
Subcommittee:
Thank you for allowing me to submit a statement regarding H.R.
2357,The Houses of Worship Political Speech Protection Act, and H.R.
2931, the Bright Line Act. I appreciate your interest in the marriage
of religion and politics, and I am glad to see you are giving it the
thoughtful consideration it deserves.
Let me begin by asking one of the basic questions of America's
experiment in democracy: what it the proper role of churches and houses
of worship in our government?
The Founding Fathers clearly considered this an important question
and placed their answer squarely at the beginning of the Bill of
Rights, asserting, ``Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.''
For over two centuries, those 16 words have worked to protect our
religious freedom, and in my opinion, make religious liberty the crown
jewel of America's experiment in democracy. As students of human
behavior, and human history, our forefathers understood that,
politicians, if allowed, could not withstand the temptation to use
religion as a means to their own political ends.
Martin Luther King, Jr. faced this same question and voiced his
answer well. He said: ``The church must be reminded that it is not the
master or the servant of the state, but rather the conscience of the
state.'' (Strength to Love, p. 47,1963) He knew that the independence
of religious institutions during the civil rights movement gave them
the freedom to speak out against government policies--unconstrained by
the potential repercussions.
As a person of faith, I believe religion has a profound impact on
our private values, our personal lives and our public life as a nation.
However, one of the principles that keeps our government and our
religious institutions so strong is that each has been allowed to
flourish separately. To see how religious institutions and government
operate together, I suggest you look at countries across the Middle
East. I humbly submit that we in this country keep our own model rather
than following theirs.
Currently, federal law prohibits all 501(c)(3) organizations,
including churches and houses of worship, from legally participating in
partisan political activities without forfeiting their tax-exempt
status. In essence, once an organization participates in political
activities, it can no longer be considered tax-exempt. I believe this
is an important safeguard measure, which protects the autonomy of all
religious organizations. However, provisions in both H.R. 2357 ad H.R.
2931 will enable houses of worship to be excluded from this prohibition
and to use their tax-exempt contributions for political activities and
endorse candidates. I cannot emphasize how dangerous this could be for
our government and for our religious institutions--it could ultimately
compromise the integrity of both. Do we really want to create a system
where elected officials will use our churches and houses of worship as
a tool in partisan fighting and politics?
Religious freedom is of the utmost importance to me, and I urge the
Subcommittee to consider the threat that these bills pose to that
pillar of American democracy.
Statement of the Islamic Supreme Council of America
In the Name of God, Most Merciful, Most Compassionate
Chairman Houghton and distinguished Members of the Subcommittee:
The Islamic Supreme Council of America (ISCA) is a religious
organization dedicated to providing practical solutions for American
Muslims, based on the rulings of classical Islamic jurisprudence. We
work proactively with government and civil institutions, both
domestically and abroad, to present the ideological standpoint of
traditional Muslims throughout the world.
We respectfully express to you today our opposition to HR 2357 and
HR 2931, which would amend the Internal Revenue Service Code of 1986 to
permit churches and other houses of worship to engage in political
campaigns.
In restricting the political participation of religious
organizations, the current tax codes embody the will of our Founding
Fathers and reflect their wise and sound judgment not to converge
religious institutions and the political system of this nation.
As traditional Muslims, we know that classical Islamic doctrine is
in harmony with the views articulated by the framers of our
Constitution in this matter.
According to Islamic tradition, our houses of worship are for God
and for God alone. Though this makes mosques the central focus of
public life in Islam, it also places them outside the sphere of worldly
discourse. Emphasizing the purely spiritual nature of the mosque in
Islam, the Prophet Muhammad (s) said, ``And a prayer followed by a
prayer with no worldly talk during the gap between them will be
recorded in the good deeds of believers.''
The sanctity of the mosque as a place for remembrance of God and
His worship is emphasized time and again in the Holy Quran. In one
place it was revealed, ``When the call is made for prayer on Friday,
then hasten to the remembrance of God and leave off trading; that is
better for you, if you know'' (62:9). Trade here refers to all that
involves the worldly life--not just buying and selling but the business
of power-seeking and politics. Thus the emphasis is that, in responding
to the call for prayer, worldly concerns are set aside as one enters
the mosque. Once prayers are completed, the affairs of this world may
be picked up again outside the mosque as the next verse stresses: ``And
when the prayer is finished, then may ye disperse through the land, and
seek of the Bounty of God . . .'' (62:10).
For this reason, the 2nd Caliph of the Prophet, Umar ibn al-
Khattab, set aside an area near the mosque and said, ``Whoever wishes
to talk of this world . . . or raise his voice should go to that
area.''
Throughout the ages, the leading thinkers of the Islamic world have
warned against turning the mosque into a political forum. These men and
women valued the sanctity of the mosque and knew that allowing it to
become a political venue would diminish its holy status. They also knew
that doing so would divide the members of a congregation along
political lines, turning a house of worship into an arena for political
wrangling, in-fighting, and all manner of intrigues.
We believe the same holds true for churches and synagogues, too.
What sincere believer would like to see the pulpit of his church or the
bima of her temple turned into a stump for political lobbying,
fundraising or vote seeking? Who would like to see their pulpit turned
into the floor of Congress?
While there are surely members of every faith community that would,
in their short-sighted pursuit of greater political influence, welcome
the increased lenience proposed by the authors of these two bills, we
believe that the problems created thereby far outweigh any possible
benefits.
The tragic events of September 11 are a grim reminder of the
ultimate consequences of transforming religion into a political tool.
It is an extreme example, but one which should not be forgotten in the
present debate.
As Muslims, we are all too aware of the perils posed by
politicizing religion. As Americans, we are also well aware of the
prudent provisions our Founding Fathers instituted to prevent the
marriage of politics and religion. As people of faith, we urge the
Subcommittee to leave those barriers intact, to leave that door closed
and to ensure that America's mosques, synagogues, chapels and churches
remain places of worship, not of politics.
Thank you.
Statement of the Hon. Walter B. Jones, a Representative in Congress
from the State of North Carolina
Mr. Chairman, Ranking Member Coyne, members of the Committee, thank
you for holding this hearing to discuss whether the 1st
Amendment to the U.S. Constitution guarantees the freedom of speech to
our churches, synagogues, and mosques.
Specifically the question is: Should the Internal Revenue Service
be able to determine what is appropriate speech in our nation's houses
of worship, and then revoke the tax-exempt status if it feels those
religious institutions have ``crossed the line''?
Mr. Chairman, if this were 1953, there would be no need for this
oversight committee hearing, because at that time our nation's
churches, synagogues and mosques had no restrictions on speech! But in
1954, one Senator, Lyndon Johnson--without a debate--attached an
amendment to a tax bill that for the first time since the writing of
the Constitution restricted the political speech of all 501 c (3)
organizations.
I find the restriction on the speech of houses of worship to be
particularly troubling, and that is what this bill attempts to address.
The First Amendment to the Constitution says, ``Congress shall make
no law respecting an establishment of religion, nor prohibiting the
free exercise thereof. '' I firmly believe that threatening the tax
exempt status of those houses of worship whose speech the IRS deems has
`crossed the line into politics' has the effect of denying their right
to the free exercise of their religious beliefs.
HR 2357 would take the Internal Revenue Service out of the business
of telling houses of worship what is and what is not appropriate
speech, by restoring the rights they enjoyed prior to 1954.
Just as non-profit organizations--including churches--are currently
allowed to expend an ``insubstantial'' amount of their funds on
lobbying activities, they would be allowed to expend an ``insubstantial
amount'' on political activity. Just as they are allowed to speak out
on the moral ramifications and endorse bills before Congress,
ministers, priests, and rabbis would to be able to speak out about
candidates on the ballot.
Is speaking out on candidates, or engaging in an insubstantial
amount of political activity a good thing? People of faith will
obviously disagree. A great many good things, like the abolition of
slavery for instance, would not have happened without the political
involvement--through the churches--of people of faith.
But the appropriate level--if any--of political speech should be
decided by the church and its parishioners, not the Internal Revenue
Service.
Examples of the chilling effect of the Internal Revenues Service's
policing of speech in the pulpit are not difficult to find.
When Floyd Flake, a former member of congress and pastor of Allen
A.M.E. Church in Harlem, asked his parishioners to vote for Al Gore in
the 2000 Presidential race, he did so believing--right or wrong--that
his moral code, grounded in his religious faith, led him to believe
that voting for Mr. Gore was the right thing to do. Not just right
politically, but right morally.
What was his reward for speaking out on the practical political
expression of his religious beliefs? The Internal Revenue Service
threatened to revoke his tax-exempt status, and required Floyd Flake to
sign a document promising to cease politicking from the pulpit.
A minister of the Gospel being required by an agency of the United
States Government to cease speaking out on issues which his morality
compels him to address! That is as chilling as it is wrong.
In my own district, for example, I know of a constituent who asked
his priest to remind the parishioners during the homily (sermon) that
George Bush was pro-life, and that Al Gore was pro-choice. The priest
replied that he felt he could not make that statement--not because he
did not feel it was important, but because he feared that speaking out
on the practical political application of his church's moral code might
jeopardize his church's tax status. Consider what that priest was
saying: Preaching the practical application of your church's faith
risks incurring the wrath of the IRS!
Unfortunately, the examples go on. The practical result is nothing
less than a violation of free speech and the free exercise of religion
guaranteed by the Constitution.
To add insult to injury, Mr. Chairman, the law is not applied in an
even manner. Press accounts are full of candidates in some churches
prior to elections, asking for--and receiving--the endorsement of the
minister. Yet the same IRS that gagged Floyd Flake turns a blind eye to
alleged violations of the law that are printed in the newspapers for
all the world to see!
The IRS should treat all the churches, synagogues, and mosques
equally. There are only two ways to do so: Either have armies of IRS
agents and informants, permanently monitoring the speech and activities
of every house of worship, or by getting the IRS out of the religious
speech business.
Mr. Chairman, I submit the only way to fairly apply the law, in a
manner consistent with our national and constitutional values, is to
get the IRS out of the business of telling ministers, priests, and
rabbis, what is appropriate speech.
Therefore, we need to eliminate the Johnson Amendment. The IRS
should not be the ``Speech Patrol''. Our spiritual leaders should feel
free to speak on moral and political issues of the day, including
talking about candidates for public office and where they stand on
those issues. If a minister believes that one candidate best reflects
that church's moral beliefs, the IRS should be in no position to deter
him or her from saying so.
Mr. Chairman, we as members of the United States Congress take an
oath to defend the constitutional rights of the American people. I hope
this committee will move a bill that will return the 1st
Amendment rights to our spiritual leaders. It is the right thing to do.
Thank You.
Maryland Bible Society
Baltimore, Maryland 21202
Ways and Means:
As a United Methodist Minister for 35 years and an Executive
Director of a religious nonprofit, I am totally against any church or
religious group using funding to do campaigning and electioneering for
political candidates through churches or ministries. This is absolutely
the wrongheaded way of doing business. Discussion of issues and
candidates freely yes, but the use of nonprofit funds for such
political and partisan agendas is absolutely stupid. I totally oppose
any religious institution or church using any funding as a nonprofit
tax exempt body for political purposes of pushing the candidacy of any
political party.
Thank you.
Rev. Dr. Raymond T. Moreland
Executive Director
National Council of Nonprofit Associations
Washington, DC 20005-1525
May 28, 2002
The Honorable Amo Houghton, Chairman
Committee on Ways and Means
Subcommittee on Oversight
U.S. House of Representatives
1136 Longworth House Office Building
Washington, DC 20515
via e-mail ([email protected]) and facsimile
((202) 225-2610)
Re: Comments for the May 14, 2002 Hearing on the Review of Internal
Revenue Code Section 501(c)(3) Requirements for Religious Organizations
Dear Representative Houghton:
Thank you for the opportunity to submit a written statement for
consideration by the Subcommittee and for inclusion in the printed
record of the May 14, 2002 hearing on the Houses of Worship Political
Speech Protection Act (H.R. 2357) (the ``Political Speech Protection
Act'') and the Bright-Line Act of 2001 (H.R. 2931) (the ``Bright-Line
Act''). These comments are submitted by and on behalf of the National
Council of Nonprofit Associations (NCNA).
NCNA is a membership organization of state and regional
associations of nonprofits that represent and serve thousands of local
nonprofits throughout the country. Our members work at the state and
local level to provide training and technical assistance to improve the
operations and effectiveness of organizations while promoting the value
of the nonprofit sector.
NCNA strongly believes in the need for a united nonprofit sector,
and opposes any legislative or regulatory act that seeks to divide the
nonprofit sector based on subject matter and philosophy. Both the
Political Speech Protection Act and the Bright-Line Act are intended
to--and will--divide the sector.
These bills allow churches to engage in activities not permitted of
all other 501(c)(3) organizations. Such distinctions are unnecessary
and harmful to the sector. Whether nonprofits should be prohibited from
engaging in electioneering activities (participating in, or intervening
in, political campaigns on behalf of a candidate) is a legitimate
question. However, neither the Political Speech Protection Act nor the
Bright-Line Act address it. Instead, they allow churches and other
church-related organizations only to participate in campaigns.
In addition, the Bright-Line Act would permit churches to expend
greater expenditures to influence legislation than section 501(h) of
the Internal Revenue Code of 1986, as amended (the ``Code''), allows
all other organizations. Churches could spend up to twenty (20) percent
of its gross revenues to influence legislation, while all other
organizations that make the 501(h) election (``Electing Charities'')
are limited to a maximum expenditure of the lesser of $ 1,000,000 or
twenty (20) percent of the first $ 500,000 of gross revenues, plus
lesser percentages of its remaining gross revenues. In addition, while
Electing Charities can spend no more than twenty-five (25) percent of
its lobbying expenditures on grassroots lobbying,\1\ the Bright-Line
Act does not contain a similar limitation for churches. Such
disparities based on type of organization should not be endorsed and
enacted into law.
---------------------------------------------------------------------------
\1\ NCNA is supporting current efforts to eliminate the distinction
between grassroots and direct lobbying under Code section 4911(c)(4)
and to raise the lobbying expenditure limits contained in Code section
4911(c)(2).
---------------------------------------------------------------------------
One of the stated justifications for these bills is that churches
are refraining from engaging in legally permissible activities due to
fear of losing their tax-exempt status for engaging in an impermissible
activity. However, the solution is not to change the law, but to better
educate the churches about permissible activities. NCNA and its network
of state associations are currently engaging in these educational
efforts, along with other national organizations such as the Alliance
for Justice and Charity Lobbying in the Public Interest.
Thank you for this opportunity to comment. Please let me know if
you have any questions or would like any further information on my
comments, or if NCNA can be of any further assistance to the
Subcommittee on Oversight of the Committee on Ways and Means.
Sincerely,
Audrey R. Alvarado
Executive Director
Statement of Kay Guinane, Counsel and Manager, Community Education
Center, OMB Watch
OMB Watch is a nonprofit organization that promotes government
accountability and citizen participation in public issues and decision-
making. We appreciate the opportunity to comment on HR 2357 and HR
2931, on our own behalf and in the interest of the nonprofit sector.
OMB Watch works with and through the nonprofit sector because of
its vital place in communities and our faith that the sector can play a
powerful role in reinforcing our democratic principles. Because of our
commitment to strengthening the voice of the nonprofit sector in public
policy debates we fully support the right of all nonprofits to speak
out publicly on the moral and political issues of the day, regardless
of their religious character. This right is protected the First
Amendment to the Constitution and current tax law. There is nothing in
current law to stop religious congregations or any other 501(c)(3)
organization from fully exercising this right.
1. Current Law is Adequate to Protect the Right of Religious
Organizations to Speak on Public Policy Issues
Proponents of HR 2357 and HR 2931 claim passage is necessary to
protect the right of religious organizations to speak on moral and
political issues, and that its impact would only be to free clergy to
speak on issues and their principles of faith. However, the tax code
specifically limits the definition of prohibited ``political'' to
speech the support of or opposition to a candidate for office. This
hardly puts a muzzle on clergy that wish to address the morality of
abortion, the death penalty or any other public issue. HR 2357 and HR
2931 ignore current legal protections for speech by 501(c)(3)
organizations.
Current Law Allows Unlimited 501(c)(3) Time and Money for:
Commentary on public issues from the pulpit
Public education campaigns
Publication of pamphlets, research, newsletters and
analysis
itigation
Comment on proposed regulations
Participation in agency and commission proceedings
Nonpartisan voter education, registration and get
out the vote activity
Limitations on 501(c)(3) Legislative Lobbying
All public charities, including religious
organizations, can lobby at the local, state or national level
as long as it is not a ``substantial part'' of its overall
activities.
Prohibition on Supporting or Opposing Candidates for Office
The tax code prohibits support or opposition to
candidates, but there are no regulations that clearly define
what activities are allowable and what are not. The IRS uses a
``facts and circumstances'' test to determine whether a
501(c)(3) has in fact engaged in partisan electioneering. This
lack of clarity leaves all 501(c)(3)s, not just religious
organizations, without clear guidance.
Religious organizations can create 501(c)(4)
affiliates that can endorse or oppose candidates. Contributions
to these organizations are not tax deductible.
Clergy, Members of Congregations and Others Can Act as Individuals
Any person, acting on their own behalf, can endorse
candidates, volunteer on campaigns, or even run for public
office, as long as they do not use the resources of a 501(c)(3)
organization.
Based on the above, we believe there is no need for new legislation
to protect the right of religious organizations to speak on issues.
2. HR 2357 and HR 2931 Would Turn Religious Organizations Into Soft
Money Conduits
The proposed bills would have an enormous financial impact on
campaign finance. They would create an enormous soft money loophole,
and turn religious congregations into conduits for campaign
contributors seeking to avoid campaign finance laws. They would allow
religious congregations to spend money and use their institutional
resources for a wide range of partisan political activity, from
operating phone banks to running ads on radio or TV.
The soft money problem would be exacerbated by two
factors:
Donations to 501(c)(3) organizations are tax
deductible and
Religious organizations are not required to file IRS Form 990, the
annual information return filed by most 501(c)(3) organizations. Since
there is less public accountability, it would be impossible to know the
extent of the use of religious organizations as conduits for
unregulated campaign contributions, or to know who is contributing and
what candidates they support or oppose.
This is clearly contrary to the intent of Congress is passing the
Bipartisan Campaign Finance Reform Act earlier this year, and for that
reason alone is sufficient justification to defeat these bills.
3. HR 2357 and HR 2931 Discriminate Against Non-religious 501(c)(3)
Organizations
If free speech rights of 501(c)(3) organizations are to be
extended, they should be extended fairly, to all public charities, not
just religious organizations. By limiting new rights to congregations,
the proposed legislation unduly discriminates against other charities
that can be equally concerned with the moral and political issues of
the day. There is no rational justification for such a distinction.
Conclusion
All 501(c)(3) organizations share the same experience with the
current lack of clarity of what constitutes prohibited partisan
electioneering. If, as is claimed by the proponents of this
legislation, the problem is the chilling effect this lack of clarity
has, the uneven enforcement that results, the solution should be
fashioned to fit the problem. HR 2357 and HR 2931 go well beyond what
is needed to bring clarity to the law. If, on the other hand, the
sponsors of these bills believe that tax deductible dollars should be
used for candidate campaigns, they should clearly state why, and allow
for a debate on that issue.
People for the American Way
Washington, DC 20036
May 10, 2002
House of Representatives
Washington, DC
Dear Representative,
On behalf of the more than 500,000 members and supporters of People
For the American Way, we are writing to urge you to oppose H.R. 2357,
the so-called ``Houses of Worship Political Speech Protection Act.''
This bill threatens religious liberty by turning America's houses of
worship into partisan political operations.
H.R. 2357 flies in the face of federal tax law, which clearly
states that houses of worship, like all other 501(c)(3) organizations,
cannot legally engage in partisan politics and still retain their tax-
exempt status. This law safeguards the integrity of both religious
institutions and the political process.
H.R. 2357 is based on the false assumption that existing law does
not allow religious leaders to speak out on issues pertinent to their
congregations. Claims that existing law would have silenced the
religious community on issues such as abolitionist and civil rights
movements are simply not true. Religious leaders currently use their
moral authority to address current issues. They are prevented, however,
from endorsing or opposing candidates, and using their tax-exempt
donations to contribute to partisan campaigns.
Finally, H.R. 2357 is unnecessary, and unwanted by America's
clergy. Supporters of this bill erroneously claim that there is a
clamoring within the religious community for radical changes to
existing tax law pertaining to houses of worship. In actuality, a
recent Gallup poll found that 77% of clergy were opposed to clergy
endorsing political candidates.
Please join us in opposing H.R. 2357.
Sincerely,
Ralph G. Neas
President
Stephenie Foster
Director of Public Policy
Statement of William J. Murray, Chairman, Religious Freedom Coalition
The Religious Freedom Coalition commends Congressmen Phil Crane (R-
IL) and Walter Jones (R-NC) for trying to alleviate the present
intolerable situation in which clergymen and their congregations fear
to express publicly any political views or even opinions about moral
issues such as abortion, because these may be perceived as political.
This climate of fear, which is exactly what the First Amendment was
created to prevent, is caused by uncertainty about what is or is not
permissible for a clergyman to say without having the church's tax
exempt status taken away.
As things stand now, the guidelines are so unclear that it is just
up to the discretion of IRS bureaucrats to decide who is in violation.
There is evidence that these rulings by the IRS are selectively and
unfairly enforced, targeting those who express conservative views while
ignoring others whose liberal views are favored.
Congressman Crane's Bright Line Act of 2001 (H. R. 2931) and
Congressman Jones' Houses of Worship Political Speech Protection Act
(H. R. 2357) would help restore First Amendment rights to America's
churches and synagogues.
America had a long history of free speech in her houses of worship,
beginning with Revolutionary War era preachers who spoke out for
freedom and encouraged the founding of the new country. It was largely
in the churches where the abolitionist movement began, as religious
people stirred up the conscience of the nation about the evils of
slavery. In the first half of the twentieth century, clergymen spoke
out fearlessly on many social issues and they warned of the dangers of
murderous fascism and communism.
The era of free speech came to an ignoble end in 1954 when Senator
Lyndon Johnson inserted the ban on political speech as a little noticed
floor amendment to another bill. There were no hearings on this
amendment, nor does the Congressional Record indicate that any
explanation was ever given for this ban. There was a behind the scenes
explanation though; Johnson was being criticized by a conservative
Texas pastor. To silence his critic, he slipped in a law that clearly
violates the spirit of the Constitution.
It's true that the law was ignored when Martin Luther King and
other black pastors led peaceful civil rights demonstrations in the
1960's. If it had been strictly enforced, Dr. King and other church
leaders could have been silenced. In fact, the law was largely ignored
until the early 1990's, when Democrats realized they could follow the
example of LBJ and use it against political opponents.
During Bill Clinton's 1992 presidential campaign, the Church at
Pierce Creek in Conklin, New York sponsored a newspaper ad that
criticized Clinton for his stand on abortion. In retaliation, the
church had its tax exempt status revoked. Yet when first Bill Clinton
and then later Al Gore campaigned in churches, there was hardly a word
said from IRS officials. Preacher and former Democrat Congressman Floyd
Flake invited candidate Gore to speak at his Allen A.M.E. Church in
Queens, New York. From behind the pulpit Flake told the congregation,
``This should be the next president of the United States.'' Was Rev.
Flake or his church punished in any way? Well, he did get a ``caution''
from the IRS, but that was all.
While this was a clear violation of the law, the actual wording of
the tax code is so vague that IRS officials may interpret it any way
they please. It is not necessary to name a candidate or political party
to get in trouble. All that is necessary is that the IRS finds a given
communication ``contains some relatively clear directive that enables
the recipient to know the organization's position on a specific
candidate or slate of candidates.'' In other words, suppose a certain
candidate is well known to be in favor of unlimited abortion,
homosexual marriage, or anti-Semitism. If a pastor in an election year
chooses to address such moral issues, is that an implicit rejection of
the candidate and therefore a ``political statement?'' It can be, if
the IRS so decides.
Religious organizations deserve the clarity of knowing exactly what
political activity is acceptable and allowed by law. It should not be
left up to some bureaucrat to interpret the law and determine if a
religious institution is in violation, thus losing their tax exempt
status. We believe that either the Crane or the Jones bill will remove
confusion from sanctioned and unsanctioned activities by establishing a
clear set of standards and bringing proper enforcement.
Topeka, Kansas 66605-2086
Honorable Bill Thomas
Chairman, Committee on Ways and Means
U.S. House of Representatives
Washington, D.C.
Phone: (202) 225-3625
Fax: (202) 225-2610
E-Mail: [email protected]
Ref: Comments on The Houses of Worship Political Speech Protection Act
(HR 2357) and the Bright Line Act of 2001 (HR 2931)
Dear Chairman Thomas:
Please accept these comments on HR 2357 and HR 2931. The nonprofit
sector has a vital place in communities with this sector playing a
powerful role in reinforcing our democratic principles. Please
strengthen the voice of the nonprofit sector in public policy debates
and support the right of all nonprofits to speak out publicly on the
moral and political issues of the day, regardless of their religious
character. As you know, this right is protected the First Amendment to
the Constitution and current tax law. There is nothing in current law
to stop religious congregations or any other 501(c)(3) organization
from fully exercising this right.
1. LCurrent Law is Adequate to Protect the Right of Religious
Organizations to Speak on Public Policy Issues
Proponents of HR 2357 and HR 2931 claim passage is necessary to
protect the right of religious organizations to speak on moral and
political issues, and that its impact would only be to free clergy to
speak on issues and their principles of faith. However, the tax code
specifically limits the definition of prohibited ``political'' to
speech the support of or opposition to a candidate for office. This
hardly puts a muzzle on clergy that wish to address the morality of
abortion, the death penalty or any other public issue. HR 2357 and HR
2931 ignore current legal protections for speech by 501(c)(3)
organizations.
Current Law Allows Unlimited 501(c)(3) Time and Money for:
Commentary on public issues from the pulpit
Public education campaigns
Publication of pamphlets, research, newsletters and analysis
Litigation
Comment on proposed regulations
Participation in agency and commission proceedings
Nonpartisan voter education, registration and get out the
vote activity
Limitations on 501(c)(3) Legislative Lobbying
All public charities, including religious organizations, can lobby
at the local, state or national level as long as it is not a
``substantial part'' of its overall activities.
Prohibition on Supporting or Opposing Candidates for Office
The tax code prohibits support or opposition to candidates, but
there are no regulations that clearly define what activities are
allowable and what are not. The IRS uses a ``facts and circumstances''
test to determine whether a 501(c)(3) has in fact engaged in partisan
electioneering. This lack of clarity leaves all 501(c)(3)s, not just
religious organizations, without clear guidance. Religious
organizations can create 501(c)(4) affiliates that can endorse or
oppose candidates. Contributions to these organizations are not tax
deductible.
Clergy, Members of Congregations and Others Can Act as Individuals
Any person, acting on their own behalf, can endorse candidates,
volunteer on campaigns, or even run for public office, as long as they
do not use the resources of a 501(c)(3) organization.
Based on the above, I believe there is no need for new legislation
to protect the right of religious organizations to speak on issues.
2. LHR 2357 and HR 2931 Would Turn Religious Organizations Into Soft
Money Conduits
The proposed bills would have an enormous financial impact on
campaign finance. They would create an enormous soft money loophole,
and turn religious congregations into conduits for campaign
contributors seeking to avoid campaign finance laws. They would allow
religious congregations to spend money and use their institutional
resources for a wide range of partisan political activity, from
operating phone banks to running ads on radio or TV.
The soft money problem would be exacerbated by two factors:
Donations to 501(c)(3) organizations are tax deductible and
Religious organizations are not required to file IRS Form 990, the
annual information return filed by most 501(c)(3) organizations. Since
there is less public accountability, it would be impossible to know the
extent of the use of religious organizations as conduits for
unregulated campaign contributions, or to know who is contributing and
what candidates they support or oppose.
This is clearly contrary to the intent of Congress is passing the
Bipartisan Campaign Finance Reform Act earlier this year, and for that
reason alone is sufficient justification to defeat these bills.
3. LHR 2357 and HR 2931 Discriminate Against Non-religious 501(c)(3)
Organizations
If free speech rights of 501(c)(3) organizations are to be
extended, they should be extended fairly, to all public charities, not
just religious organizations. By limiting new rights to congregations,
the proposed legislation unduly discriminates against other charities
that can be equally concerned with the moral and political issues of
the day. There is no rational justification for such a distinction.
Conclusion
All 501(c)(3) organizations share the same experience with the
current lack of clarity of what constitutes prohibited partisan
electioneering. If, as is claimed by the proponents of this
legislation, the problem is the chilling effect this lack of clarity
has, the uneven enforcement that results, the solution should be
fashioned to fit the problem. HR 2357 and HR 2931 go well beyond what
is needed to bring clarity to the law. If, on the other hand, the
sponsors of these bills believe that tax deductible dollars should be
used for candidate campaigns, they should clearly state why, and allow
for a debate on that issue.
Thank you for the opportunity to bring these remarks to your
attention. Mindful of the enormous responsibilities which stand before
you, I am,
Yours sincerely,
Robert E. Rutkowski
Soka Gakkai International-USA Buddhist Association
Washington, DC 20004
May 13, 2002
Rep. Amo Houghton, Chairman
Attn: Kimberly A. Reed, Esq.
U.S. House of Representatives
Committee on Ways and Means Oversight Subcommittee
Washington, DC 20515
Dear Rep. Houghton,
I am writing to express our opposition to both H.R. 2357 ``The
Houses of Worship Political Speech Act'' introduced by Rep. Walter
Jones, and H.R. 2931, ``The Bright Line Act'' introduced by Rep Phillip
Crane. Both bills would have the undesirable and corrupting effect of
bringing partisan political activity into our nation's religious
institutions.
Religious voices have spoken out consistently and at times
passionately to provide both guidance and prophetic warning concerning
the affairs of our nation. It is a role that has served both our nation
and our churches well. Present law provides well for this function. To
make our churches centers of partisan activity would be to undermine
the moral authority of these essential voices.
Furthermore, the proposed legislation would have the effect of
creating a significant loophole in our nation's campaign finance laws.
At present, those who contribute to our religious organizations may
deduct those donations from their taxes, because these 501(c)(3)
organizations are understood to be working for the general welfare of
society. Allowing church funds to support partisan causes would so
confuse the nature of these institutions as to erode the ethical basis
for tax-exemption.
From the events of the past year, we have witnessed with horror and
anger how those who seek to advance their political agenda can
manipulate religion and religious symbols. Let us learn from this
example and promote the health of both our religious institutions and
our political discourse by protecting the integrity of our voices of
conscience.
Speaking on behalf of the 300,000 US members of our Buddhist
community, I assure you that we as individuals of faith want to bring
our voices and our ideas into the public square of this nation. We
believe we can do this best under existing law and ask that you oppose
H.R. 2357 and H.R. 2931.
The Soka Gakkai International-USA is a culturally diverse Buddhist
association with more than 80 centers located throughout the country.
Its community-based activities invite a shared commitment to the values
of peace, culture and education.
Sincerely,
Bill Aiken
Director of Public Affairs
Union of Orthodox Jewish Congregations of America
Washington, DC 20036
May 10, 2002
Chairman Amo Houghton
Ranking Member William J. Coyne
& Members of the
Committee on Ways & Means,
Subcommittee on Oversight
1136 Longworth Building
Washington, DC 20515
Dear Chairman Houghton, Ranking Member Coyne and Members of the
Subcommittee,
We write to you on behalf of the Union of Orthodox Jewish
Congregations of America--this nation's largest Orthodox Jewish
umbrella organization, representing nearly 1,000 synagogues across
America--to express our serious concerns over H.R. 2357, ``The Houses
of Worship Political Speech Protection Act,'' and H.R. 2931, ``The
Bright Line Act,'' which are the subjects of your May 14 hearing. While
noble in their goals, both of these bills in their current forms would
allow partisan political pressures to be exerted upon our synagogues
and all other houses of worship in the United States.
As you are aware, current federal law provides that houses of
worship, like other 501(c)(3) organizations, may not engage in partisan
political activities and retain their tax-exempt status. This provision
of federal law has served to insulate religious institutions from the
political process in important ways. While we strongly advocate for a
vigorous role for religious institutions in our nation's public life,
both H.R. 2357 and H.R. 2931 would remove from the law the most
critical legal provision that keeps America's houses of worship at
arm's length from the rough and tumble of political contests.
Supporters of these bills contend that their enactment is necessary
to allow religious leaders to speak out on issues of interest to their
congregations. However, current law grants religious leaders an
absolute right to use their pulpits to address the moral issues of the
day. Tax-exempt houses of worship may not endorse or oppose candidates,
or use their tax-exempt donations to contribute to partisan campaigns.
Without this clear legal prohibition, clergy and/or their congregations
may well be pressured by candidates for office or congregational
leaders to explicitly support a political candidacy with no recourse
but to extend that support or risk offending the candidate or leader
whose support the religious institution needs for its core mission.
We agree with the proponents of H.R. 2357 and H.R. 2931 that the
Internal Revenue Service must not be allowed to meddle in the missions
of America's houses of worship and must not be allowed to selectively
enforce the provisions of 501(c)(3) against some churches but not
others. But we believe that these goals are better achieved by this
Subcommittee's oversight of the I.R.S., not by altering the legal
status quo in the manner proposed by H.R.2357 and H.R.2931. We would
welcome the opportunity to discuss with you these matters and possible
alternative avenues of addressing them should you or the sponsors of
these bills wish to do so.
Thank you for considering our views on this important matter.
Please do not hesitate to call upon us for any assistance we may render
in your deliberations.
Sincerely,
Harvey Blitz
Richard B. Stone
Rabbi T. Hersh Weinreb
Nathan J. Diament
Statement of William Wood, Charlotte, North Carolina
It is fascinating that there are hearings on the 501(c)3 status of
churches and their ability to engage in political speech. On the one
hand, every perversion, foul word, and form of pornography passes as
``free speech'' under the pretense that no one dare tread on this
liberty. Yet ``free speech'' is not so free in the province and domain
of religious institutions. The first Amendment did not suggest that
there was ``free speech'' except for churches and pastors. Yet somehow
we have interpreted ``freedom of religion'' to have both speech
prohibitions and religious prohibitions through IRS regulations. This
paper approaches the entire subject of IRS regulation from the
standpoint of why is political speech restricted at all in a church?
How has ``freedom OF religion'' been converted to ``freedom FROM
religion'' in the political sphere by the use of IRS code?
A more preliminary investigation as to whether or not a 501(c)3
designation, and IRS regulation is in order.
``Separation of church and state today goes beyond the simple
non-coercion approach of the founders. What appears to be
happening is that government (e.g., the defendant in the Good
News Club case) appears to be affirmatively hostile to
religion. Many people rightly sense three things: (1) the
exclusion of religion from the public square threatens liberty
by stunting the formation of moral consciences; (2) the
exclusion of religion also threatens liberty by requiring
government to use government power to enforce secular norms of
morality; and (3) the exclusion of religion in the name of
neutrality is false and discriminatory when the government then
chooses to endorse and promote a secular morality that is
offensive to the very people excluded from the debate. As
applied, the notion of the wall of separation between church
and state, rather than removing government from the morality
game, just picks certain winners and losers, a result that the
founders sought to avoid.''\1\
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\1\ Wendall Hall. March 28, 2001
``The door of the Free Exercise Clause stands tightly closed
against any governmental regulation of religious beliefs as such.\2\
Government may neither compel affirmation of a repugnant belief; \3\
nor penalize or discriminate against individuals or groups because they
hold religious views abhorrent to the authorities; \4\ nor employ the
taxing power to inhibit the dissemination of particular religious
views.'' \5\
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\2\ Sherbert v. Verner, 374 U.S. 398, 402 (1963) citing Cantwell v.
Connecticut, 310 U.S. 296, 303
\3\ Sherbert at 402 citing Torcaso v. Watkins, 367 U.S. 488
\4\ Sherbert at 402 citing Fowler v. Rhode Island, 345 U.S. 67
\5\ Sherbert at 402 citing Murdock v. Pennsylvania, 319 U.S. 105;
Follett v. McCormick, 321 U.S. 573; cf. Grosjean v. American Press Co.,
297 U.S. 233
---------------------------------------------------------------------------
Our ``American'' legal system and government have in fact done
exactly that which has been prohibited. We have enacted special IRS
rules, regulations, and procedures, under the guise of a ``501'' et.
al. status, for churches. Our founding fathers, many of them men of
faith, would have seen this as a direct assault on the First Amendment.
With ``free speech'' in America, anything goes, but with Freedom of
Religion, ONLY that endorsed, approved, and stamped with the IRS 501
approval qualifies.
Yet there is no ``compelling state interest'' for regulating the
political speech of churches through backdoor means, through a 501, or
any other IRS status;
``[T]he Supreme Court has applied ``strict scrutiny'' to
government actions burdening free exercise of religion,
requiring the government to show that its action serves a
compelling state interest and is the least restrictive means
for achieving the government objective . . .'' \6\ ``If there
is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their
faith therein.'' \7\
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\6\ Employment Div., Dep't of Human Resources v. Smith, 494 U.S.
872, 881-82 (1990); Yoder, 406 U.S. at 233 (1972); Sherbert v. Verner,
374 U.S. 398, 402 (1963).
\7\ West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642
(1943).
Yet this continued encroachment on ``political speech'' and
restriction on ``endorsing political candidates'' is precisely what the
IRS designations aim to assert. As if to imply that in a DEMOCRACY the
people hearing a message from the pulpit are too stupid, too frail, or
too intimidated to exercise an opinion contrary to the utterances from
the pulpit. These restrictions are simple anti-Christ[ian] exercises of
restriction on free speech by banning certain types of speech by a
religious institution. Of course under threat of losing their tax-
exempt status. I am constantly amazed by the ``ACLU's'' (I question how
``American'' they really are) incessant attacks on anything even
remotely resembling Christianity, yet proclaiming that perversions such
as NAMBLA (the North American Man Boy Love Association who believes in
homosexual sex with little boys by 8 years old) as ``Free Speech.''
Apparently there are few if any restraints on free speech AS LONG AS IT
DOES NOT OCCUR IN A CHURCH!
What if a pastor, with sincere conviction and belief, were to speak
a particularly pointed message against a particular politician, or a
particular bill in the context of;
For we wrestle not against flesh and blood, but against
principalities, against powers, against the rulers of the
darkness of this world, against spiritual wickedness in high
places.\8\
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\8\ Ephesians 6:12
What of those times when a pastor, near election time, considers
the particular actions of a legislator, where that legislator has
endorsed a particularly reprehensible proposition? Say for example, the
partial birth abortion debate where a baby's head is exposed from the
womb, stabbed in the head with a sharp object, and then its brains are
sucked out until the head collapses. What if a minister of a faith
considers this a particularly reprehensible evil that must be spoken
against, from the pulpit, naming specifically those individuals,
considering them ``rulers of darkness'' or practicing ``spiritual
wickedness in high places''? What of a Bill introduced in that would
allow for homosexual marriages, or the right to consortium with
animals, or with children such as that NAMBLA espouses, or other
reprehensible legislation. Must they IGNORE their conscience, and their
religious beliefs, and the tenets of their faith to satisfy an IRS that
would now DICTATE this is impermissible speech? Why is the IRS, an arm
of the Federal government, entangled in the regulation of religion to
dictate and determine what is acceptable political speech? Is this not
a ``breach'' in the fictitious ``wall of separation''?
Or the reverse, where a particular politician or legislator is
openly praised through ``supplications, [public] prayers . . . and
giving of thanks . . .''
``I exhort therefore, that, first of all, supplications,
prayers, intercessions, and giving of thanks, be made for all
men; For kings, and for all that are in
authority; that we may lead a quiet and peaceable life in all
godliness and honesty. For this is good and acceptable in the
sight of God our Saviour . . .'' \9\
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\9\ 1 Timothy 2:1-4
So we now have codified provisions, that based on the honest,
sincere, rights of conscience, free exercise of religion, and freedom
of speech where these ideals may be attacked. And where men and women
of conviction or virtue may have their speech silenced BECAUSE of their
religious affiliation which allows them the ``tax-exempt'' status.
How can we have ``free speech'' and ``freedom of religion'' with a
few IRS bindings and shackles on religious speech? WHY do we use the
IRS to regulate supposedly ``free'' speech in the ``free exercise of
religion''? \10\
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\10\ Constitutional rights, such as liberty, are not suitable
objects for taxation or encumbrances. West Virginia v Barnette, 319 US
624; US v Euge, 444 US 707.
---------------------------------------------------------------------------
What ``Separation of Church and State''?
We have erected anti-Christ[ian] barriers to religion in America
under the fraudulently constructed guise of ``Separation of Church and
State''. This often quoted phrase is used as an excuse to ATTACK every
display of anything founded upon the Judeo-Christian Biblical beliefs.
Yet it is a LEGAL FRAUD!
Thomas Jefferson WAS NOT IN THE COUNTRY FOR THE CONSTITUTIONAL
DEBATES OVER THE FIRST AMENDMENT MAKING EXCERPTS FROM A LETTER OF HIS
VOID. ``Of [the Constitutional] convention Mr. Jefferson was not a
member, he being then absent as minister to France.'' \11\ In fact, as
noted in the US Supreme Court case just quoted from, Jefferson
``expressed his disappointment at the absence of an express declaration
insuring the freedom of religion.'' Somehow Jefferson's idea of
``freedom OF religion'' has been twisted and perverted into a legal
fiction almost demanding ``freedom FROM religion'' in politics. Our
legal system has inappropriately given weight to the anti-Christ[ian]
``separation of church and state'' phrase. In according so much
``authority'' to this phrase, equal weight must be given to the
remaining letters lest the legal system finally seen as declaring open
war on Judeo-Christian beliefs. Most especially one in which Jefferson
strictly forbid the use of his own letters as a source of
Constitutional interpretation;
---------------------------------------------------------------------------
\11\ Reynolds v. U.S., 98 U.S. 145, 163 (1878)
``On every question of construction [of the Constitution] let
us carry ourselves back to the time when the Constitution was
adopted, recollect the spirit manifested in the debates, and
instead of trying what meaning may be squeezed out of the text,
or intended against it, conform to the probable one in which it
was passed.'' \12\
---------------------------------------------------------------------------
\12\ Thomas Jefferson, letter to Justice William Johnson, June 12,
1823, The Complete Jefferson, p.322
Even more distressing and exposing the passionate anti-Christ[ian]
perspective of the modern ``American'' legal system, and the proponents
of the often taken out of context ``separation of church and state''
are the sheer number of state legislatures whose Constitutions openly
endorsed Judeo-Christian principles AFTER THE FIRST AMENDMENT WAS
PASSED. Mysteriously, they found no conflict in their own
---------------------------------------------------------------------------
Constitutional constructions;
Massachusetts; First Part, Article II (1780) ``It is the
right as well as the duty of all men in society, publicly, and
at stated seasons, to worship the SUPREME BEING, the great
Creator and Preserver of the universe. . . The governor shall
be chosen annually; and no person shall be eligible to this
office, unless. . .he shall declare himself to be of the
Christian religion.''; Chapter VI, Article I (1780) ``[All
persons elected to State office or to the Legislature must]
make and subscribe the following declaration, viz. 'I,
____________________, do declare, that I believe the Christian
religion, and have firm persuasion of its truth. . .' ''
New Hampshire; Part 1, Article 1, Section 5 (1784) ``. . .the
legislature . . . authorize . . . the several towns . . . to
make adequate provision at their own expense, for the support
and maintenance of public protestant teachers of piety,
religion and morality. . .''; Part 2, (1784) ``[Provides that
no person be elected governor, senator, representative or
member of the Council] who is not of the protestant religion.''
Pennsylvania; Article IX, Section 4 (1790) ``that no person,
who Acknowledges the being of a God, and a future state of
rewards and punishments, shall, on account of his religious
sentiments, be disqualified to hold any office or place of
trust or profit under this commonwealth.''
Tennessee; Article VIII, Section 1 (1796) ``. . .no minister
of the gospel, or priest of any denomination whatever, shall be
eligible to a seat in either house of the legislature . . .'';
Section 2 ``. . . no person who denies the Being of God, or a
future state of rewards and punishments, shall hold any office
in the civil department of this State.''
Are we as American people to believe that Massachusetts, New
Hampshire, Pennsylvania, and Tennessee endorsed Judeo-Christian
principles in their Constitutions but somehow ratified the US
Constitution with this implicit ``freedom FROM religion'' as practiced
in the legal system today? Or what of the other colonies who already
had Constitutions with similar provisions BEFORE the adoption of the US
Constitution and then did not set about to immediately change their
Constitutions? The question for every person of faith in this country
is why there is such a passionate hatred for Christianity and Judeo-
Christian beliefs that this country was founded upon? And why there has
been such a concerted effort to encroach upon the domain of the church
by REGULATING A CHURCH'S POLITICAL SPEECH.
Even other legal scholars, and Federal Judges know of the outright
legal FRAUD perpetrated on the Christian faith in America. Judge
Brevard Hand, a Federal District Judge stated the ``Supreme Court erred
in its reading of history.'' \13\ In fact, after this rather
embarrassing expose, the US Supreme Court left off relying on the
intent of the framers, clearly demonstrating their anti-Christ[ian]
bent and re-created the original Legal Fraud under a principle called
the ``crucible of litigation.'' \14\ As applied in this case, the
``crucible of litigation'' in laymen's terms is translated to mean
that; whether we have constructed an anti-Chrit[ian] fraud or not, we
will not back down from our improper interpretation of the historical
foundations \15\ of this country's Christian heritage. In fact, in
analyzing this case, Rhenquist noted;
---------------------------------------------------------------------------
\13\ Jaffree v. Board of School Comm. of Mobile Co., 554 F. Supp.
1104, 1128 (1983)
\14\ Wallace v. Jaffree, 472 U.S. 38, 52 (1985)
\15\ ``[N]o understanding of the eighteenth century is possible if
we unconsciously omit, or consciously jam out, the religious theme just
because our own milieu is secular.'' . . . ``[R]eligion was a
fundamental cause of the American Revolution.''--Mitre and Sceptre,
Oxford University Press, 1962.
``But the greatest injury of the ``wall'' notion is its
mischievous diversion of judges from the actual intentions of
the drafters of the Bill of Rights. The ``crucible of
litigation,'' is well adapted to adjudicating factual disputes
on the basis of testimony presented in court, but no amount of
repetition of historical errors in judicial opinions can make
the errors true. The ``wall of separation between church and
State'' is a metaphor based on bad history, a metaphor which
has proved useless as a guide to judging. It should be frankly
and explicitly abandoned.'' \16\
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\16\ Wallace v. Jaffree, 472 U.S. 38, 52 (1985)
America was founded as a Christian nation,\17\ ``one nation under
God,'' with coins that read ``In God We Trust.'' Before the US Supreme
Court, and the US legal system became so antagonistic toward
Christianity, it declared ``[w]e are a Christian people \18\ according
to one another the equal right of religious freedom, and acknowledging
with reverence the duty of obedience to the will of God.'' \19\
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\17\ Common Law is the traditionally accepted means of interpreting
the US Constitution consistent with the intent of the framers. The
following are judicial authority for the proposition that Christianity
is part ofthe common law in the United States: Shover v.State, 10 Ark.
259 (1850); State v. Chandler, 2 Har. 553 (Del. 1837); State v. Bott,
31 La. Ann. 663 (1879); Pearce v. Atwood, 13 Mass. 324 (1816);
Lindenmuller v. People, 33 Barb. 548 (N. Y. 1861); Updegraph v.Comm.,
11 5. & R. 394 (Pa. 1882); Charleston v. Benjamin, 2 Strob. 508 (S. C.
1846); Bell v. State, 1 Swan 42 (Tenn. 1851); Grimes v. Harmon, 35 Ind.
198 (1871); Melvin v. Easley, 52 N. C. 356 (1860); Judefind v. State,
78 Md. 510, 28 Atl. 405 (1894).
\18\ U.S. v. MacIntosh, 283 U.S. 605 (1931) citing Holy Trinity
Church v. United States 143 U.S. 457, 470, 471 S., 12 S. Ct. 511
\19\ U.S. v. MacIntosh, 283 U.S. 605 (1931)
---------------------------------------------------------------------------
The US Supreme Court, in all of its anti-Christ[ian] zqeal, has
recently struck down the Religious Freedom Restoration Act \20\
insisting that Congress had violated the separation of powers doctrine.
Yet it has ignored its previous precedents to ensure the legal fraud;
Congress ``remains free to alter what [this Court has] done;'' \21\ and
the Judiciary has enacted its own legislation to guarantee that it can
break the law at will \22\ by giving itself ``immunity.'' Yet there is
no rush in the Judiciary to abandon its own self-legislated immunity to
break the law as it sees fit (all the while somehow declaring the
violating the law must be some form of ``judicial function'').
---------------------------------------------------------------------------
\20\ City of Boerne v. Flores, 521 U.S. 507 (1997)
\21\ Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989).
\22\ ``[O]fficial immunity doctrine, which ``has in large part been
of judicial making ``Doe v. McMillan, 412 U.S. 306, 318-319 citing Barr
v. Matteo, 360 U.S. at 569. Yet this concept was rejected by Mr. Thomas
Jefferson as well when he stated ``It is error [or abuse] alone which
needs the support of government. Truth can stand by itself.''
---------------------------------------------------------------------------
Until the unprecedented attack on Christian morals, values, and
beliefs in the US Legal system in the last 40 +/- years, it was well
understood that ``[c]hristianity and democracy are not separable if
democracy is to persist.'' \23\
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\23\ Stephens, School, Church and State (1928) 12 MARQ. L. REV. 206
---------------------------------------------------------------------------
And WHY do we use the IRS to regulate supposedly ``free'' speech in
the ``free exercise of religion''? \24\
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\24\ ``A (government) may not impose a charge for the enjoyment of
a right granted by the federal constitution.'' Murdock v Pennsylvania,
319 US 105; 113.
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Why attack the Christian Foundations of America?
Many of those (though unfortunately not all), who wage war on the
Christian foundations of this country do so out of ignorance, or a
predisposition to creating and generating more government power and
control. Most judges and elected representatives do not consciously
conceive of ways to undermine the country's foundations and values. In
fact, the greatest problem in all three branches of government is a
lack of basic principles and understandings that our founding fathers
were well aware of.
In evaluating the recent Wallace v. Jaffree opinion undermining the
Religious Freedom Restoration Act, an interesting legal philosophy
emerges--, the replacement of unalienable rights with civil rights. The
court relied heavily on ``Civil Rights'' contained in the
14th Amendment. In the last 40+ years there has been an
accelerated use of ``Civil Rights'' as a means to undermine and destroy
our Founder's concept of unalienable rights.
This whole concept of unalienable rights comes from the Declaration
of Independence where our Founding Fathers sought to throw off the
bands of tyranny and oppression;
``We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable rights . . .''
Inalienable (or unalienable) rights ``cannot be transferred or
surrendered'' \25\ and include ``natural rights'' which ``exist
independently of rights created by government or society, such as the
right to life, liberty, and property,'' \26\ as well as ``natural law''
which contains ``legal and moral principles . . . [or] divine justice
rather than from legislative or judicial action; moral law embodied in
principles of right and wrong.'' \27\
---------------------------------------------------------------------------
\25\ Black's Law Dictionary (2000 abridged edition) p. 1060 and
1061
\26\ Black's p. 1061
\27\ Black's p. 841
---------------------------------------------------------------------------
And then the 14th Amendment was created, after the
13th Amendment (which abolished slavery) noting;
``No State shall make or enforce any law which shall abridge
the privileges or immunities of any citizen of the United
States; nor shall any State deprive any person of life,
liberty, or property without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.''
The 14th Amendment became the basis of Civil Rights, or
Civil law for the United States. Civil Rights are ``the individual
rights of personal liberty guaranteed by the Bill of Rights and by the
13th, 14th, 15th, and 19th Amendments, as well as by
legislation . . . Civil rights include especially . . . the right of
due process, and the right of equal protection under the law.'' \28\
Civil Liberty is a part of Civil Rights denoting ``freedom from UNDUE
governmental interference or restraint [as determined by government of
course]. This term usually refers to freedom of speech or religion.''
\29\ Civil Rights are also part of the Civil Law which is ``the body of
law IMPOSED BY THE STATE, as OPPOSED to moral law. '' \30\ One of the
signers of the Constitution noted the intention of American law stating
``[f]ar from being rivals or enemies, religion and law are twin
sisters, friends, and mutual assistants. Indeed, these two sciences run
into each other. The divine law, as discovered by reason and the moral
sense, forms an essential part of both.'' \31\
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\28\ Black's p. 195
\29\ Ibid.
\30\ Ibid. definition 3.
\31\ James Wilson, The Works of the Honourable James Wilson
(Philadelphia: Bronson and Chauncey, 1804), Vol. I, p. 106
---------------------------------------------------------------------------
As the 14th Amendment is applied today, it is in direct
opposition to the ``Creator endowed unalienable rights'' guaranteed by
our originally enacted Constitution. Where there are ``creator endowed
unalienable rights'' there is the requirement to determine the Creator
who endowed them so that the rules are clear. This principle was widely
understood and clearly known throughout the early history of our
country, until it came under direct attack by the lawyers in black
robes in our courts today. As Thomas Jefferson noted ``[n]othing. . . .
is unchangeable but the inherent and inalienable rights of man.'' \32\
To the extent that they are changeable, such as under Civil Rights
interpretations by the lawyer led courts, they are no longer
unalienable rights. The clearest example of this can be seen with the
whole abortion debate. A brand new ``Civil'' right was created to allow
the killing of babies on demand, even to the point of stabbing a
partially born human child in the head, and then sucking its brains
out. This is a ``state'' created, state endorsed, and state sponsored
right which can be altered at any time. That is why we hear shrieks of
horror at the prospect of a Supreme Court Justice who might not be
favorable to this state created right. Under ``Creator endowed
unalienable rights'' stabbing a partially born human child in the head
and sucking its brains out would be a seditious evil demanding of
criminal prosecution for those carrying out such heinous acts.
---------------------------------------------------------------------------
\32\ Thomas Jefferson to J. Cartwright, 1824
---------------------------------------------------------------------------
To gain and keep power and control, the black robed lawyer led
judiciary MUST maintain and promote Civil Rights as opposed to
unalienable rights. Civil Rights give the courts their power over
issues that our Founding Fathers would be horrified to see today. Civil
Rights allow the ``back door control'' of churches through state
created ``statuses'' such as the IRS code in question here. The
exercise of unalienable rights takes power and control away from both
the state and the courts. So frightening is the prospect of unalienable
rights to the lawyer led Judiciary that all vestiges of unalienable
rights MUST be drawn under their control and domain. To gain Civil
control Bibles MUST be banned from the classroom (the very rule book
for the unalienable rights), political speech MUST be stopped from the
pulpit (to stifle and stop morality, values, and any virtuous influence
in politics), and the 10 Commandments and every Biblical reference in
our Nation MUST be torn down and removed from EVERY place in the
Nation.
As a direct result of the blatant attack on the Foundations of this
Nation's religious history, America now enjoys an unprecedented place
in history, of the industrialized nations we are now;
#1 In Teen Pregnancy
#1 In Violent Crime
#1 In Prison and Jail incarcerations
#1 In illiteracy
#1 In Suicide
#1 In Divorce
#1 In Drug Use
And the list goes on and on. Yet the frightening part of all of
this is that it serves a CIVIL government well. The more social
disorder, chaos, immorality, violence, crime, and other ills suffered
by society, the greater need for more and more government control. And
the greater and greater need for the growth of government to ``combat''
the ills that its attack on America's foundations created to begin
with.
``Can the liberties of a nation be thought secure when we have
removed their only firm basis, a conviction in the minds of the people
that these liberties are the gift of God?'' \33\
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\33\ Thomas Jefferson: Notes On Virginia, 1782
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The principles of our Founding Fathers were simple, they believed
that if one abided by the ``golden rule'' and preserved a sense of
community based in common morals, values, and virtues, that little
government would be needed.
Please take a moment and read some of the quotes from our Founding
Fathers and then ask yourself, would THEIR interpretation of the
Constitution allow the IRS to regulate a church's political speech?
[O]nly a virtuous people are capable of freedom. As nations
become corrupt and vicious, they have more need of masters.\34\
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\34\ Benjamin Franklin, The Writings of Benjamin Franklin, Jared
Sparks, editor (Boston: Tappan, Whittemore and Mason, 1840), Vol. X, p.
297, April 17, 1787
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[N]either the wisest constitution nor the wisest laws will
secure the liberty and happiness of a people whose manners are
universally corrupt.\35\
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\35\ William V. Wells, The Life and Public Service of Samuel Adams
(Boston: Little, Brown, & Co., 1865), Vol. I, p. 22, quoting from a
political essay by Samuel Adams published in The Public Advertiser,
1749.
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[I]t is religion and morality alone which can establish the
principles upon which freedom can securely stand. The only
foundation of a free constitution is pure virtue.\36\
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\36\ John Adams, The Works of John Adams, Second President of the
United States, Charles Francis Adams, editor (Boston: Little, Brown,
1854), Vol. IX, p. 401, to Zabdiel Adams on June 21, 1776
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[I]f we and our posterity reject religious instruction and
authority, violate the rules of eternal justice, trifle with
the injunctions of morality, and recklessly destroy the
political constitution which holds us together, no man can tell
how sudden a catastrophe may overwhelm us that shall bury all
our glory in profound obscurity.\37\
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\37\ Daniel Webster, The Writings and Speeches of Daniel Webster
(Boston: Little, Brown, & Company, 1903), Vol. XIII, p. 492. From ``The
Dignity and Importance of History,'' February 23, 1852
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``Religion, morality, and knowledge . . . [are] necessary to
good government and the happiness of mankind.''--Northwest
Ordinance (1787)
[W]e have no government armed with power capable of
contending with human passions unbridled by morality and
religion . . . . Our constitution was made only for a moral and
religious people. It is wholly inadequate to the government of
any other.\38\
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\38\ The Works of John Adams, Second President of the United
States, Vol. IX, p. 229, October 11, 1798
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The law given from Sinai was a civil and municipal as well as
a moral and religious code; it contained many statutes . . . of
universal application-laws essential to the existence of men in
society, and most of which have been enacted by every nation
which ever professed any code of laws.\39\
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\39\ John Quincy Adams, Letters of John Quincy Adams, to His Son,
on the Bible and Its Teachings (Auburn: James M. Alden, 1850), p. 61.)
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No free government now exists in the world, unless where
Christianity is acknowledged, and is the religion of the
country.\40\
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\40\ Pennsylvania Supreme Court, 1824. Updegraph v. Cmmonwealth; 11
Serg. & R. 393, 406 (Sup.Ct. Penn. 1824)--such a modern profession by a
judge would be ridiculed, criticized, and the judge making such a
statement would be attacked and maligned.
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The doctrines of Jesus are simple, and tend all to the
happiness of mankind.\41\
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\41\ Thomas Jefferson, The Writings of Thomas Jefferson, Albert
Bergh, editor (Washington, D.C.: Thomas Jefferson Memorial Assoc.,
1904), Vol. XV, p. 383
And WHY do we use the IRS to regulate supposedly ``free'' speech in
the ``free exercise of religion''? \42\
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\42\ The exercise of religion is not a suitable basis for taxation.
Follett v McCormick, 321 US 573. The mere chilling of a constitutional
right is held oppressive. Shapiro v Thompson, 374 US 618.
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