Tax-exempt churches should never engage in partisan electioneering.
Prior to the Nov. 8 election, FFRF acted on 15 electioneering complaints, sending letters to the IRS reporting illegal campaign intervention on the part of churches in different parts of the country. Some of the most egregious cases were within the final weeks before the election, including a flyer distributed at a California church that told parishioners: “It is a mortal sin to vote Democrat.” In another instance, a pastor of a Roman Catholic Church in Rhode Island said: “I cannot vote for Mrs. Clinton, since my immortal soul would be in peril by cooperating in the destruction of innocent human life.”
Like all nonprofits organized under 501(c)(3) of the tax code (including FFRF), churches must abide by strict guidelines that prohibit partisan 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.” 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.”
In order to cross the line and unlawfully endorse a candidate, pastors don’t need to say any magic words like “Vote for Candidate A” or “Don’t cast your ballot for Candidate B.” They can even cross that line by expressing that sentiment without telling a parishioner directly. Churches should not even tacitly express favor or disfavor of a particular candidate.
Over the years, FFRF has reported hundreds of churches that have violated these prohibitions. In 2012, FFRF sued the IRS to compel it to enforce its own regulations barring churches as well as other nonprofit (c)(3)s from engaging in partisan political activity. FFRF is proud that the lawsuit nudged the IRS to agree to continue to investigate errant churches and ensure that the tax code is being enforced evenhandedly.
Tax-exempt 501(c)(3) organizations may either maintain neutrality and stay tax-exempt or endorse candidates and pay taxes. The choice is theirs. As the law stands, religious leaders are free to endorse whomever they choose, so long as they do so on their own time in their capacity as citizens, not from the pulpit and not as church officials using church resources. This rule is known as the Johnson Amendment, after Lyndon B. Johnson, the Texas senator and later president who helped pass the law in 1954. (President-elect Donald Trump has vowed to repeal the rule, but it is currently the law.)
James Madison wrote, “to employ religion as an engine of civil policy” was “an unhallowed perversion of the means of salvation.”
Churches would do well to listen to this Founding Father.
