Let My Preachers Endorse: A Modest Church-State Proposal

This past Wednesday the Freedom from Religion Foundation filed a federal lawsuit against IRS Commissioner Douglas Shulman for allowing churches to endorse candidates while remaining tax exempt. According to the FFRF, this “constitutes preferential treatment to churches and religious organizations that is not provided to other tax-exempt organizations.” Regardless of the outcome, the church-state watchdog is quite right about one thing: churches have been electioneering, and they’ve been doing it for quite some time.

Church in the Valley urged its members to “VOTE FOR THE MORMON, NOT THE MUSLIM! THE CAPITALIST, NOT THE COMMUNIST!”; Ridgway Christian Center in Colorado instructed its to “Honor God! Love Your Country! VOTE REPUBLICAN!”; while church bulletins of St. Catherine of Siena in New York included a pro-Romney message from former U.S. ambassadors to the Vatican. The 1500 congregations supporting Pulpit Freedom Sunday, which included Black churches, endorsed an array of local, state, and federal candidates. And they’ll continue to do so.

“It’s their prerogative, it’s their opinion, it’s their church,” observed a resident of the Texas town where Church in the Valley is located. True. But the law requires that, in return for public subsidies—tax exemptions and tax-deductibility for donations—all congregations like all other charities agree to public regulation of their electoral (and lobbying) activities. While some congregations consider it a violation of their religious freedom, it’s a constitutional exchange, according to case law. Moreover, as the Tenth Circuit Court ruled in the 1972 Christian Echoes National Ministry, Inc. v. United States, which addressed lobbying by faith-based organizations, tax subsidies are “a privilege, a matter of [governmental] grace rather than right…”

As these churches refuse to quit electioneering, and since the IRS has failed to strip them of their tax-exempt privilege, the FFRF suit seems quite appropriate. But what if there’s another way to deal with this issue…a way for congregations to endorse candidates—but in a constitutional way? It turns out there is one: give congregations the option to change their tax status, from charitable 501(c)(3) to social welfare 501(c)(4) organization.

After all, Congress permits social welfare organizations to endorse candidates and keep their tax exemptions, if they can show electioneering isn’t their primary activity. As long as electioneering didn’t become the primary activity of congregations as social welfare organizations, their clergy could freely endorse candidates and keep the amazing grace of a government subsidy.

Before 1954 the political activities of congregations, save for lobbying, were unregulated. Despite tax-exempt status, tax-deductible contributions, and the freedom to electioneer, congregations didn’t become political machines. Since then, however, for reasons unrelated to congregation-based electioneering, Congress has circumscribed electoral engagement by all charities. It prohibits them from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” Oddly, it lets them support or oppose candidates for appointive office, including positions that may influence elections and their results (e.g., the Supreme Court).

Of course, congregations desiring more electoral action already may create social welfare organizations. But there’s no incentive for them to do it; individual donations to 501(c)(4)s and transfers of funds from congregations to them aren’t tax-deductible. That’s partly why groups like Alliance Defending Freedom want congregations to remain 501(c)(3)s, preserving tax-deductible contributions to subsidize congregational electioneering. Yet, if the free exercise of religion requires electioneering, as ADF and others claim, congregations should willingly render back tax-deductibility to the government.

Might the loss of tax deductions for contributions to congregations reduce funding for religious worship and constrain social ministries? Perhaps. Giving to congregations and other charities, however, is an obligatory exercise of faith, and not just for Christians. I expect that God will make a way somehow for congregations that choose to electioneer. Fortunately, religious adherents are among the most charitable and reliable of American givers, and they mainly give to religious nonprofits. Congregations as social welfare organizations would endure as long as members and visitors have reasons to continue to tithe and donate to them.

Congregations, however, should have the choice to redesignate as social welfare organizations. After all, as scholarship on the political behavior of congregations shows, the majority of congregations don’t electioneer. For instance, Mark Chaves’ Congregations in America reports that the average congregation doesn’t let candidates address their worshippers, doesn’t register voters, and doesn’t distribute voter guides. Since the electioneering ban isn’t a problem for the majority of congregations they should keep their conventional status as charitable. For others, allow them to change their status.

Again, converting the tax status of congregations shouldn’t transform them into primarily electoral organizations. Congregants, and denominations, would expect their primary purposes to remain religious worship and education. If electioneering did eclipse worship, members who are strongly opposed to the candidates and parties their congregation endorse could exercise sophia and vote with their feet, joining other congregations.

By not reclassifying congregations that electioneer as social welfare organizations we perpetuate a democratic inequality. Yale University scholar Adam Cohen describes it in his recent Time commentary against congregations endorsing candidates: “If a group of friends get together to engage in politics, they cannot deduct the money they spend to support a candidate. It is not clear why a group of people who get together to pray should be able to do their political activity with tax-deductible money.” Strangely, past and current proposals in Congress to address electioneering by congregations would leave in place the democratic inequity.

In the 1990s Congressmen Phil Crane (R-IL) and Charles Rangel (D-NY), for instance, introduced the Religious Political Freedom Act. They sought to permit congregations to spend a set portion of their revenue from tax-deductible contributions on political campaigns and other partisan activities.

For the last decade, Rep. Walter Jones (R-NC) has introduced bills repealing the electioneering ban. If Jones’s bills ever passed, according to the Congressional Research Service, they “would appear to permit activities such as express endorsement or opposition to a candidate for public office during a sermon; requests that contributions be made directly to the candidate’s committee or other political organizations; directions for individual contributions of services to political campaigns; and exhortations to vote for particular candidates.” Congregations would practically be unencumbered in their electioneering, subsidized by the public.

As others argue, rightly in my view, repeal or modification of the electioneering ban would create a Pandora’s Box for charitable organizations and American democracy.

For sure, it’s understandable why some clergy and congregations want to be more explicitly political. As the U.S. Conference of Catholic Bishops reminds its parishioners and others, political issues such as the federal mandate for birth control to be covered by insurance, immigration reform, poverty, and public funding of stem cell research involve moral and ethical questions requiring “faithful citizenship” (i.e., democratic expressions and engagement of religious values). Supporting candidates who may defend their moral and ethical positions coheres with that view.

Additionally, although the majority opinion among Americans is that congregations should abstain from politics (54% of Americans in 2012 agree that congregations should “keep out of political matters,” up from 43% in 1996; white evangelicals and Black Protestants are the exceptions), clergy speak on electoral issues—war, abortion, marriage equality, healthcare, etc.—from their pulpits. Sermons, especially in election years, convey interpretations of where their faiths stand in relation to the political parties and candidates on key issues. It’s true of conservative, moderate, and progressive clergy. Allowing clergy to endorse candidates merely recognizes that fact.

Some Americans, particularly many on the left, want congregations out of politics and oppose congregation-based electioneering because they see it as contributing to a creeping ascendance of what political commentator Kevin Phillips terms “American theocracy.” As New York Times opinion columnist Ross Douthat observes, “many liberal and secular Americans…regard religious conservatives not merely as their political opponents, but as a kind of existential threat. The religious right, they decided, wasn’t a normal political movement. Rather, it was an essentially illiberal force…” 

Congregation-based electioneering may further advantage the religious right as a political force in American politics, yet a Pew survey implies that we’d see more electioneering by Black Protestants than white evangelicals. That’s because the former are more likely “to be hearing about the candidates at church. Among regular churchgoers, four-in-ten (40%) black Protestants say their clergy have spoken directly about the candidates, compared with 17% of white Catholics, 12% of white evangelicals and just 5% of white mainline Protestants.”

Regardless of the type of congregation, others oppose electioneering because it may sully the sacred. “The pulpit’s authority,” Rev. Dr. Welton Gaddy of Interfaith Alliance contends, “is compromised if those who stand in it and preach from it claim a divine authority for their endorsements of candidates. Such a commendation from a sacred desk trivializes other comments made there….” Hence, electioneering by clergy may undermine their moral influence. Again, those who feel this way may well register their discontent with their feet.

In the final tally, changing the tax status of congregations that want to electioneer has multiple advantages over the status quo, expanding and protecting the religious liberty of clergy and congregations while fostering democratic fairness. It also ensures that congregations who wish to abstain from electioneering are able keep their most significant public benefit: tax exemption. And conversion respects the Constitution.

Can I get an amen?

michael.leo.owens@emory.edu'

Michael Leo Owens is a Public Voices Fellow with the OpEd Project and a professor of political science at Emory University. He is the author of God and Government in the Ghetto: The Politics of Church-State Collaboration in Black America.

  • Bryan Blake

    Allowing religions to “electioneer” while keeping their tax exemption status is nothing more than a child of Citizens United and Hobby Lobby. It is a dangerous idea. Politics is already smoke and mirrors. We do not need the pontification of preachers muddying the waters.

    The Founders lived under a state church that was a political arm of the crown. The First Amendment is as much a protection of our government from religion as the protection of religion from government.

    If a church wants to electioneer take away their tax exemption. Subject them to a sliding tax rate based upon their “good works”. Then if they have any money left let them have their politics.