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AUSCS letter on political speech
The following is the full text of the letter sent by Americans United for the Separation of Church and State to 285,000 religious institutions in 2000.
Return to: "Activist Churches Question Speech Limits"
February 2000
Dear Religious Leader,
Another election year is upon us, and questions about the appropriate role of houses of worship in the political process have arisen.
The First Amendment of the U.S. Constitution protects the right of all Americans, including pastors and church leaders, to speak out on religious, moral and political issues. However, houses of worship, along with other non-profit entities classified under section 501(c)(3) of the Internal Revenue Service Tax Code, are barred from endorsing or opposing candidates for public office and may not intervene directly or indirectly in partisan campaigns.
Some religious leaders are understandably confused about what they can and cannot do concerning politics in the pulpit. This situation has been complicated by the fact that groups like the Christian Coalition are urging churches to distribute "voter guides" that are really little more than campaign literature that attacks certain candidates while promoting others.
Last year the Federal Election Commission (FEC) lost part of a case that it had filed against the Christian Coalition. As a result, the Coalition is telling church leaders that its guides have been approved for in-church distribution by a federal court. This is not true. In fact, the federal court ruled for the Coalition only because federal election law is weak. In her decision the federal judge noted that the Coalition's voter guides clearly favor some candidates over others.
Federal tax law, which governs the activities of houses of worship, is much stronger than federal election law. The IRS absolutely prohibits churches from engaging in partisan politics. One church has already lost its tax-exempt status for violating this provision, and the IRS's action has been upheld by a federal court.
The enclosed memorandum on the FEC case was prepared by two attorneys who are experts on non-profit tax law--one of them the former head of the IRS tax-exemption division. It is designed to help you understand the meaning of the recent ruling in the FEC case as it applies to groups like the Christian Coalition and ultimately your own congregation.
Several church leaders have asked for clarifying information because they have been approached by Christian Coalition officials and told, incorrectly, that the group's voter guides have been approved by a federal court and that distributing them in church presents no legal problems. These religious leaders have found this information useful, and we hope you do too.
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Please be extremely wary of legal advice from the Christian Coalition. After a 10-year review, the IRS in 1999 refused to grant the Coalition tax exemption because of its partisan political activities. If the Coalition is unable or unwilling to comply with tax law itself, why should religious leaders trust its advice on the subject?
Our considered advice to you is this: Don't distribute Christian Coalition voter guides through your house of worship.
The legal implications of distributing biased political material in a church are serious. But just as important are the ethical issues raised by disseminating materials of clear partisanship and dubious accuracy.
If you would like more information about churches and politics, please visit Americans United's website at www.au.org and read the document, "Religion and Politics: A Pastor's Guide." If you do not have access to the Internet, please call Americans United at (202) 466-3234 and request a free copy.
Thank you for taking the time to read this material.
Sincerely,
The Rev. Barry W. Lynn
Executive Director
Religion and Politics: A Pastor's Guide
Recently questions have arisen about the appropriate role of religion in politics and what activities houses of worship may undertake in the political process. This guide, based on information provided by two tax attorneys who are experts in non-profit law, is designed to answer some of the common questions about this subject.
Churches and other non-profit organizations that hold tax-exempt status must abide by Internal Revenue Service regulations barring any involvement in partisan politics. The blanket prohibition concerns only races for public office, not issues. Religious leaders may speak out from the pulpit or in other forums on moral and political issues. However, churches and pastors may not endorse candidates for public office or advise congregants to vote for or against certain candidates.
Q. What type of activities are prohibited under the IRS Code?
A. Church endorsements of candidates and statements of opposition to candidates are strictly forbidden and can result in revocation of a church's tax-exempt status. (However, clergy may endorse candidates as individuals in forums outside the church or work on behalf of candidates during their personal time.) In addition, churches may not contribute money to candidates, solicit contributions on their behalf or donate to candidates' political action committees. Churches may not set up their own PACs.
Q. What constitutes an endorsement or opposition to a candidate?
A. Prohibited activities may include letters of endorsement or opposition printed on church letterhead, church-sponsored distribution of campaign literature, pastors advising congregants to vote for or against candidates from the pulpit, the display of campaign signs on church property and other activities that could be construed as endorsing or opposing a candidate.
Q. What is the penalty if a church violates this standard?
A. Penalties can include loss of tax-exempt status or financial penalties imposed on church officials.
Q. Has this ever happened to a church?
A. Yes. The Church at Pierce Creek in Binghamton, N.Y., lost its tax-exempt status in 1995 after the IRS determined it had violated federal tax law by publishing a full-page ad in USA Today in late October of 1992 advising people that voting for presidential candidate Bill Clinton was a sin. The church sued in federal court to regain its tax-exempt status but recently lost in federal district court.
Q. What types of political activities can houses of worship engage in?
A. There are many. For example, houses of worship may sponsor voter registration drives. They may encourage voting and even help people get to the polls on election day. They may not tell people who to vote for.
Churches can also sponsor non-partisan candidate forums. Religious groups may sponsor forums at which all legally qualified candidates for a given office are invited to appear. The questioning should be non-partisan in nature and broad, covering a range of issues, not just moral or social issues of concern to the church.
Churches may send questionnaires to candidates and ask them where they stand on issues. However, before distributing the answers, churches should make sure the answers are accurate and that the questionnaire covers a wide range of issues. Questionnaires should be sent to all candidates, and the church should not compare the candidates' answers to the church's preferred position on issues.
Q. What about voter guides? Can they ever be distributed in churches?
A. Houses of worship should be extremely wary of voter guides produced by outside groups, such as the Christian Coalition. Many of these groups hold a different type of tax-exempt status, a status that permits them to engage in some political activities that churches are not permitted to engage in. Also, when a guide has been produced by an outside organization, church leaders have no way of knowing if the answers are accurate or if the guide has been intentionally slanted to favor a certain candidate. The Christian Coalition has been accused of both intentionally slanting its guides and including inaccuracies of some candidates' positions. In fact, strong evidence exists to indicate that this is a common practice for the group. Moreover, Christian Coalition guides rarely, if ever, cover a wide range of issues. If a voter guide produced by an outside group is determined to be partisan in character and is distributed in church, the IRS has the legal right to penalize the church even though it did not produce the guide.
Please feel free to download and copy this document for distribution to other interested parties. A more detailed legal analysis is available for attorneys and others interested in a more in-depth look at this issue. Contact Americans United for details.
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