Statement Opposing Church-Politicking Bill

Andrew Seidel, FFRF Constitutional Consultant

Earlier this month Rep. Walter Jones (R-NC) introduced a bill that would allow tax-exempt churches and other 501(c)3 nonprofits to engage in partisan politics and remain tax-exempt.

A recent congressional trend bestows lofty, and misleading, names on legislation: the Clear Skies Act would have allowed more air pollution to be emitted, the Healthy Forest Initiative let loggers cut the oldest, tallest trees in the forest. Jones’ Bill may not amount to Orwellian doublespeak but it is very misleading. “Restor[ing] the Free Speech and First Amendment rights of churches” sounds great, except that nobody is preventing churches from exercising those rights. The law now is simple: tax-exempt organizations, including churches, cannot endorse political candidates and retain their tax-exemption. Organizations may either endorse candidates and pay taxes, or maintain neutrality and stay tax-exempt. The choice is theirs.

Should any church or 501(c)3 desire, they could be incorporated under another section and permitted to engage in partisan politics without the tax-exemption (Billy Graham chose this route). As the law now stands religious leaders are free to endorse whomever they choose, so long as they do so on their own time in their capacity as a citizen, not as a church official using church resources.

Tax exemptions are not rights but privileges and those privileges come with strings attached. The point of 501(c)3 organizations is to provide educational and charitable services. Their resources are directed (or supposed to be directed) towards the betterment of society as a whole, not partisan politics. Jones may wish to consider the law of unintended consequences: does he really want, for instance, the National Academy of Sciences to weigh in on candidates’ aptitude to govern the country based on their views about evolution? There is no doubt that churches (which opine on everything from how you have sex, to what you should eat, to your choice of underwear) will be sure to express their opinion, informed or not, about who their flock should vote for.

The best reason for killing this bill was recognized early in our country’s history: religion and politics are a dangerous mix. James Madison thought, “to employ Religion as an engine of Civil policy” was “an unhallowed perversion of the means of salvation.” A Memorial and Remonstrance Against Religious Assessments, Article 5. He also thought “Religion and government will both exist in greater purity, the less they are mixed together.” Letter to Edward Livingston, July 10, 1822. In McCreary County, the Supreme Court wrote, “…the divisiveness of religion in current public life is inescapable.” 545 U.S. 844, 881 (2005). In Van Orden v. Perry, Justice Breyer wrote in his dissent that the purpose of the First Amendment is to “avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.” 545 U.S. 677, 698 (2005). One law review article put it this way, “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” Paul A. Freund, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969).

If this bill were to pass, official church doctrine could include which candidate congregants must vote for. The most wicked aspect of church-politicking is the power which religious leaders hold over the mind of the individual (Christopher Hitchens, quoting William Blake, referred to this as “the mind-forged manacles of servility and superstition”). Willing churchgoers could be excommunicated for failing to adhere to church voting doctrine or, far worse, a congregant might believe they will suffer eternal torture if they vote for the “wrong” candidate. The pressure churches would be able to exert — blackmail would not be an inappropriate term here — would forever alter our political system. Elections would cease to be about ideas and become pandering to churches for souls/votes (although one might convincingly argue this has already happened to a certain extent). Not only would the law legalize, it would subsidize, electoral fraud and coercion of the worst kind.

Tax-exempt entities are technically taxpayer-subsidized. We pay more taxes because tax-exempt organizations pay none. They have a free ride. This is why it is wholly unfair to permit exempt organizations to engage in partisan politics. There are an estimated 335,000 churches and, depending on how you define denomination, 217 denominations in the United States. Imagine if every tax-exempt church endorsed candidates from the pulpit and openly interjected themselves into political campaigns. Church donations could be siphoned into political campaigns with absolutely no accountability. Even now, churches are exempted by the IRS from filing the onerous Form 990 which all other exempt groups must file annually accounting for what they have done with tax-exempt donations. The proposed bill would outstrip the impact of Supreme Court's ruling that “corporations are people” by quite a bit.

We would all do well to heed the words of a 19th century justice:

“There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution, and war, and all evil in the state, as religion. Let it once enter our civil affairs, our government would soon be destroyed.” Weiss v. District Board, 44 N.W. 967, 981 (1890)(Orton, J. concurring).

Jones has a history of introducing bills that attempt to combine these contradictory elements. Shortly after 9/11 he introduced and pushed through a concurrent resolution “Expressing the sense of Congress that schools in the United States should set aside a sufficient period of time to allow children to pray for, or quietly reflect on behalf of, the Nation during this time of struggle against the forces of international terrorism.” Jones has also co-sponsored H.Res. 489, a colossal waste of legislation that allegedly “protects” rights that are not in danger.

In fact, Jones has tried to introduced bills almost identical to the bill at issue in 2001 as a member of the 107th Congress, in 2003 as a member of the 108th Congress, in 2005 as a member of the 109th Congress, and in 2007 as a member of the 110th Congress. No doubt as a member of the 111th Congress (2009-2010) during the housing and economic crisis he was dealing with more important issues. For instance, introducing H.R. 268 to ensure that “[i]f called upon to lead a prayer outside of a religious service, the [every military] Chaplain shall have the prerogative to close the prayer according to the dictates of the Chaplain’s conscience.” That bill, and every previous attempt to allow church-politicking and tax-exemptions failed to make it out of the quagmires of congressional committees. Let’s hope this happy trend continues.

Andrew Seidel is FFRF’s first Constitutional Consultant. See his full bio here.

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