Churches and Political Campaign Activity
Churches and other nonprofits are strictly prohibited from engaging in political campaigning. This prohibition stems from the requirements of Section 501(c)(3) of the Internal Revenue Code (“Code”).
An organization that qualifies as “tax-exempt” under Section 501(c)(3) is one that devotes its resources to educational, religious, scientific or other charitable activities, and that complies with a number of other rules, including the prohibition on political activity. In exchange for agreeing to fulfill certain public purposes and following the rules for 501(c)(3)s, these organizations do not pay taxes on their income and contributions received by them are tax-deductible by their donors. Churches are recognized as 501(c)(3) organizations, although under the law, they do not have to get specific approval from the IRS to be tax-exempt under 501(c)(3), unlike other charities.
In order to remain tax-exempt under 501(c)(3), churches must abide by strict guidelines that prohibit election activity. The Code states in relevant part that 501(c)(3) organizations cannot “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.” I.R.C. Sec. 501(c)(3). Thus, as a 501(c)(3) organization, churches are strictly forbidden from supporting or opposing a candidate for public office. To do so jeopardizes their tax-exempt status. Churches cannot engage in any of the following activities under the federal tax law:
- 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 of their resources to be used indirectly for political purposes (e.g., use their 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 on church property
Under current law, churches, as well as 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 has received many complaints about church leaders expressing political opinions and endorsing certain candidates either as part of a Sunday sermon, in a church newsletter, in a robocall, or in some other communication from the church. 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.” Rev. Rul. 2007-41, 2007-25 I.R.B. (June 28, 2007). To report violations to the IRS, see "How to Complain" (at end).
Churches and Lobbying
The Foundation receives numerous questions about church activities in influencing legislation, or lobbying. A 501(c)(3) organization, including a church, is allowed to engage only in “insubstantial” lobbying. In other words, a 501(c)(3) could lose its tax-exempt status if it engages in substantial lobbying; however, the definition of “insubstantial” is amorphous. For some 501(c)(3)s, which are notchurches, the organization may make a “501(h) election,” which allows them to measure substantiality by expenditures and to spend up to 20% of its budget on lobbying (for annual budgets under $500k). However, churches are not eligible to make the 501(h) election and, thus, are subject to a vaguer test. Keep in mind that “religious organizations” are treated differently from “churches” and, thus, like other 501(c)(3) organizations, are permitted to make a 501(h) election.
Although the “insubstantial test” for churches is vague, churches can do a minimal amount of lobbying. Churches can attempt to influence any legislation considered at the federal level (Congress), state level (state legislatures), or local and municipal level (city councils and county boards). The IRS considers legislation to include any acts, bills, resolutions, confirmation of political appointees (including Cabinet members and judgeships), and ballot initiatives or referendums. These advocacy activities, however, must be limited. Unfortunately, if a church is one with an active membership, regular services and ongoing community activities, it may be difficult to prove that more than a minimal amount of the church’s time and resources are being spent on lobbying. All of the facts of their participation must be considered. For example, if the topic of the sermons for 49 weeks of the year do not address referendum issues, but do advise on referenda for the remaining 3 weeks, is that “minimal”? If you want the IRS to consider that question, see “How to Complain” at the end of this paper.
Ballot Initiatives or Referendum
Churches have been actively involved in many recent controversial ballot initiatives and referenda in numerous states across the country. Under the law, this is permissible activity because ballot initiatives are considered to be “legislation” and, thus, are lobbying activities, not “political” activity. For example, a priest is allowed to tell his congregation to support a referendum denying equal marriage rights to gay partners, and to include church support or opposition to referenda in church bulletins. Again, however, if there is substantial time or money spent on this by the church, that could be problematic.
Because it is difficult to show that a church, with an active membership and regular services, is engaged in “substantial” lobbying, it is important to consider whether a church may have violated local election laws. For example, if a church puts up a sign in opposition to a ballot initiative, which includes a message indicating support or opposition for an initiative, that church may need to be registered as a campaign committee or, at a minimum, report the sign as an in-kind contribution. If you are concerned about a particular activity, consider reporting it to local or state authorities as a possible election law violation.
When Church Lobbying Becomes Political Campaign Intervention
IRS regulations allow 501(c)(3)s to engage in issue advocacy or lobbying so long as it does not function as political campaign intervention. At times, however, the advocacy/lobbying can cross a line to become an indirect way to support or oppose a candidate for public office. “Even if a statement does not expressly tell an audience to vote for or against a specific candidate, an organization delivering the statement is at risk of violating the political campaign intervention prohibition if there is any message favoring or opposing a candidate.” Rev. Rul. 2007-41, 2007-25 I.R.B. (June 28, 2007). The IRS will consider all facts and circumstances to determine whether the advocacy is political campaign intervention. Id. Key factors include:
- “Whether the statement identifies one or more candidates for a given public office;
- Whether the statement expresses approval or disapproval for one or more candidates’ positions and/or actions;
- Whether the statement is delivered close in time to the election;
- Whether the statement makes reference to voting or an election
- Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office;
- Whether the communication is part of an ongoing series of communications by the organization on the same issue that are made independent of the timing of any elections; and
- Whether the timing of the communication and identification of the candidate are related to a non-electoral event such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office.” Id.
When evaluating any 501(c)(3)’s advocacy activities, it is important to keep in mind these factors, as well as the “insubstantial” test. If you believe that a church has crossed the line into electioneering, you may file a complaint [see below].
Additionally, if a church or clergyman goes beyond allowable advocacy, state election laws may come into play, e.g., requirements to register with a state election commission if spending over certain limits. Fines may be levied if churches fail to register. Each state has different laws governing spending to influence the public over the outcome of elections, including referenda. As noted above, consider reporting such possible violations to local or state authorities.
Other Religious Organizations and Election or Lobbying Activity
During the election season, other religious organizations will get involved in political campaigning or lobbying activities. The permissibility of their activities depends on the way the nonprofit is organized under the tax code. Nonprofits can be registered as such under 501(c)(3) as a charitable organization, or under 501(c)(4) as a social welfare organization. The rules on permissible activities differ depending on the tax status. As explained above, some religious organizations that are recognized under 501(c)(3) but are not “churches” can make the 501(h) election for lobbying activity, which allows them to take advantage of the specific (and fairly generous) safe harbors for expenditures (e.g., 20% of a $500k budget). Of course, however, these organizations are always prohibited from engaging in political activity.
501(c)(4) organizations are permitted to engage in political campaign activity without jeopardizing their tax-exempt status so long as that activity is only a secondary activity of the organization. While some political activity by a 501(c)(4) is allowed, a 501(c)(4) is still subject to campaign finance rules and, thus, cannot engage in express advocacy to the general public. However, be aware that it can endorse a candidate to its own membership and expressly advocate for the election or defeat of a candidate in communications with its membership.
Significance of Church Involvement in Referendum
It is important to comment further on the issue of church support of referenda, because of the impact churches are having on these issues. Church-proposed and endorsed referenda—especially anti-gay and antiabortion referenda, are rampant. The fact that more than 30 states in rapid succession have passed amendments banning civil unions or same-sex marriages to state constitutions is no surprise. These amendments have been nearly unstoppable, because there are far more Roman Catholic and fundamentalist churches than liberal churches. There is no debate over the origins of antigay and antiabortion amendments, either. There is an exclusively religious lobby, responding to demands by Mormon, Roman Catholic, and fundamentalist Protestant churches, promoting referenda to deny marriage rights to gays. Compounding the problem is the fact that many of these same churches are increasingly used as polling places! Who is monitoring church polling places for electioneering?
One way that churches explicitly support these referenda are through use of church marquees and lawn signs. These signs are a clear attempt to influence not just members of the congregation, but the public as well. Marquees are expensive and often provide a priceless roadside position that involves church electioneering on tax-exempt property. Local taxpayers, including people who are not members of the church, are technically subsidizing the lawn signs or marquees on tax-exempt property. However, this kind of lobbying by churches, to date, has been hard to challenge. Individuals may wish to photograph a "Vote Yes" or "Vote No" marquee, and report this activity to the IRS (see “How to Complain,” below), consider whether the church has registered appropriately under your local election laws or if there are any other state or local laws that could or should regulate this activity. Also, write a letter to the editor protesting it.
The key question here is the widespread failure of churches to report referendum activity geared at influencing the general public and the lack of monitoring and guidance on church signs and actions. If churches are continued unbridled liberty to promote political referenda, with no accountability—and with taxpayers forced to subsidize their political speech—our country is headed toward a theocracy.
To report violations (or to add your voice to complain about the IRS regulation permitting churches to influence referenda and initiatives), see "How to Complain.”
How to Complain
If after reading the above information, you believe a church has violated the law, fill out a Department of the Treasury—Internal Revenue Service Form 13909, available as a regular pdf to print and fill out by hand, or as a pdf form version, which allows you to fill out the form on your computer and then print.
Send the completed form by one of the following methods:
IRS EO Classification
Mail Code 4910DAL, 1100 Commerce Street
Dallas TX 75242-1198
To complain to the IRS about its tax regulations permitting churches to politick over referenda, write to: Douglas Shulman Commissioner of Internal Revenue 10th St & Pennsylvania Ave, NW Washington, DC 20004
For more information, please see the IRS "Tax Guide for Churches and Religious Organizations."