Here’s a headline crafted to strike fear in the hearts of Christian conservatives, already primed by the ongoing Republican investigations of the Internal Revenue Service, to think the IRS is out to get them: “Congress Demands Answers over IRS’s ‘Collusive’ Attempt to Target Churches at the Behest of Angry Atheists.”
The representatives demanding answers are Rep. Scott Garrett (R-NJ) and eight members of the 67-member Congressional Constitution Caucus, whose mission “is to promote an American future that remains true to its revolutionary past.” On Monday they sent a letter to IRS Commissioner John Koskinen, requesting responses to “deep concerns” about a “dismissal agreement” in a lawsuit filed by the atheist group Freedom From Religion Foundation, which sought to compel the IRS to enforce its own regulations prohibiting electioneering from the pulpit.
As I explained last year:
Churches and other houses of worship, whose tax exempt status is under section (c)(3) of the Internal Revenue Code, risk their tax-exempt status if they use tax-exempt resources to endorse political candidates. Although the law is clear, no audits have been initiated since 2009, after a federal court ordered the agency to issue regulations clarifying requirements that audits of churches be authorized by an “appropriate high-level Treasury official.”
During the uproar over the supposed IRS targeting of tea party groups, conservative Christian groups tried to claim that they, too, were targeted by the IRS for their religious beliefs. IRS movement on the audit procedures will likely trigger more complaints from conservative legal and religious groups that the agency is attempt to stifle their free speech. Through efforts such as Pulpit Freedom Sunday, pastors openly flout the law. Enforcement of the rule, and the revocation of a participating church’s tax-exempt status, though, could trigger a constitutional challenge to it.
The rule against politicking, though, isn’t aimed at suppressing free speech but at ensuring that taxpayers don’t subsidize political activity by tax-exempt religious organizations.
FFRF sued the IRS in 2012, and the parties recently settled the case—or, more accurately, FFRF withdrew its lawsuit, satisfied that, for the moment at least, the IRS was enforcing its own regulations. But a rumor percolated in conservative media that a “secret settlement” between FFRF and the IRS represented a nefarious plot by the IRS to do the bidding of “angry atheists” to “silence” churches. Earlier this month, Ralph Reed’s Faith and Freedom Coalition demanded “the release of a secret legal agreement between the Internal Revenue Service and a radical atheist organization that portends increased scrutiny and harassment of churches and Christians, potentially infringing upon their First Amendment rights of freedom of speech and association.”
Upon closer examination—surprise!—that turns out not to be the case.
Patrick Elliott, a staff attorney at FFRF, told me “there has been a lot of misinformation published about the resolution of the case,” and pointed me to FFRF’s Memo Supporting Dismissal of the case. In support of its motion to withdraw its own lawsuit, FFRF cited, and filed with the court, a letter from the Internal Revenue Service to the Department of Justice, dated June 27, 2014, describing how “the IRS has processed several cases involving churches using procedures designed to ensure that the protections afforded to churches by the Church Audit Procedures Act are adhered to in all enforcement interaction between the IRS and churches.”
No agreement between the IRS and the FFRF. Just a letter from the IRS to the Justice Department, upon which FFRF relied in deciding to withdraw its own lawsuit.
Its procedures, the IRS letter went on:
require evaluation of the information item by our Review of Operations (“ROD”) unit and then the Political Activities Referral Committee (“PARC”). With regard to these referrals that concern violations by churches, the PARC has determined that as of June 23, 2014, 99 churches merit a high priority examination. Of these 99 churches, the number of churches alleged to have violated the prohibition during 2010 is 15, during 2011 is 18, during 2012 is 65, and during 2013 is one.
As a result, FFRF wrote in its motion:
Based on available information, FFRF and its counsel are satisfied that the I.R.S. no longer has an explicit policy or practice of not enforcing the the electioneering restrictions of § 501(c)(3) against churches. For that reason, FFRF is agreeable to a voluntary dismissal of the pending action.
As FFRF notes in an FAQ about the case it posted on its website on August 7, “FFRF agreed to voluntary dismissal of its case because recent clarifications by the IRS have remedied its concerns. FFRF is satisfied that the IRS does not at this time have a policy specific to churches of non-enforcement of its anti-electioneering provisions.” Responding to charges that there was an agreement that the IRS would “monitor” churches, FFRF added that it “did not withdraw its suit pursuant to any agreement to ‘monitor’ sermons and homilies for proscribed speech with which FFRF disagrees. As the court documents state, FFRF withdrew the case because it ‘is satisfied that the IRS does not have a policy at this time of non-enforcement specific to churches and religious institutions.'”
