This Sunday, Oct. 5, is the annual so-called "Pulpit Freedom Sunday." This event, organized and promoted by the Alliance Defending Freedom, a Christian Right legal group based in Arizona, encourages pastors to abuse their tax-exempt status and openly endorse or oppose candidates for office from the pulpit.
FFRF wants to take the opportunity to remind the public about the IRS regulations with respect to political activities by 501(c)(3) tax-exempt organizations and encourage its members to report any illegal activity.
As you may know, FFRF sued the Internal Revenue Service in late 2012 to compel it to enforce its own regulations barring tax-exempt 501(c)(3) nonprofits from engaging in partisan political activity. Earlier this year, this case was resolved because the IRS agreed to resume doing its job by investigating tax-exempt churches that engage in illegal electioneering.
So long as Pulpit Freedom Sunday, and any other electioneering by churches during this election season occurs, FFRF remains committed to seeking IRS investigations into this illegal activity. Members who become aware of this activity should send FFRF a violation report with information, including the church's name, the pastor's name and any other information that documents illegal campaign activity. This would include transcripts of sermons, pictures of political signs on church property and copies of church publications announcing endorsements of particular candidates for public office.
IRS regulations specify that 501(c)(3) organizations, which include churches and other religious organizations, are prohibited from "[participating in or intervening in] . . . any political campaign on behalf of (or in opposition to) any candidate for public office." Revenue Rul. 2007-41, 2007-25 I.R.B. (June 28, 2007). While leaders of churches or religious organizations may express their opinions on political matters as individuals, they are precluded from making "partisan comments in official organization publications or at official functions of the organization."
This means churches:
• Cannot endorse or oppose candidates for public office.
• Cannot make any communication — either from the pulpit, in a newsletter, or church bulletin — which expressly advocates for the election or defeat of a candidate for public office.
• Cannot make expenditures on behalf of a candidate for public office or allow any resources to be used indirectly for political purposes (e.g., phones for a phone bank).
• Cannot ask a candidate for public office to sign a pledge or other promise to support a particular issue.
• Cannot distribute partisan campaign literature.
• Cannot display political campaign signs favoring a candidate or a party on church property.
Churches and other 501(c)(3) organizations may engage in nonpartisan campaign activities, primarily consisting of voter education. Thus, they may organize and coordinate nonpartisan get-out-the-vote and voter registration drives; sponsor nonpartisan candidate debates or forums, so long as all legally qualified candidates are invited to appear and wide spectrum of issues are covered; educate all candidates on issues of public interest; and create legislative scorecards or voter guides. All of these permissible activities must be done on a nonpartisan basis. A 501(c)(3) entity should not even tacitly express favor or disfavor of a particular candidate.
FFRF also often receives queries from its members about referendum or ballot initiatives occurring in their states. One such current measure is Amendment 1 in Tennessee, which is an anti-abortion amendment to the state constitution. Churches have been active all across the state lobbying and urging their congregants to vote "yes." While they have a right to do so under current IRS regulations, this activity can cross the line when certain factors exist.
IRS regulations only allow 501(c)(3)s to engage in issue advocacy or lobbying so long as it does not function as political campaign intervention. The line is crossed when the lobbying becomes an indirect way to support or oppose a candidate for public office. Permissible lobbying can become illegal political campaign intervention when:
• The statement expresses approval or disapproval for one or more candidates' positions and/or actions.
• The statement is delivered close to the election (which is now).
• The statement makes reference to voting or the upcoming November election.
• The issue addressed has been raised as an issue distinguishing candidates for a given office.
Tax-exempt 501(c)(3) nonprofits are afforded a special privilege in our country. If an organization chooses to be tax-exempt under 501(c)(3), it forfeits the right to engage in political campaigns. Churches and other religious organizations are free to give up tax-exempt privileges in order to engage in electioneering if they so choose, but they cannot abuse their tax-exempt privilege and remain tax-exempt.
During Pulpit Freedom Sunday and the rest of the midterm election season, keep an eye out for illegal campaign activity by churches and other religious organizations. FFRF has a detailed FAQ on churches and political activity, which provides information on reporting violations.