AU.org - Americans United for Separation of Church and State
Church and State February 2004
Religious Right Leaders Press For Passage Of U.S. Rep. Jones' Church Electioneering Bill
by Jeremy Leaming
The Rev. Jerry Falwell is gearing up for the 2004 election season. Last summer, the TV preacher detailed his partisan political agenda to Fox News commentator Bill O'Reilly.
"I am a strong Bush supporter," said the Lynchburg, Va.-based evangelist, "and come November 2004, hopefully, I will be able to influence many evangelicals and people of faith to vote for George Bush, no matter who the Democratic candidate may be."
For good measure, Falwell boasted to O'Reilly that for at least 25 years he has worked "to mobilize 60 million to 70 million evangelicals in this country for the pro-family, pro-life candidates, which have been exclusively Republicans of late."
But there's a big obstacle to Falwell's scheme to mold evangelical churches into a massive political machine: federal tax law. The Internal Revenue Service Code provides an exemption from federal income taxes for nonprofits of all types as long as they don't oppose or support candidates for public office.
Falwell and his Religious Right allies are fervently working with members of Congress to remove that obstacle. Indeed, attorneys with the Rev. Pat Robertson's American Center for Law and Justice (ACLJ) have helped write legislation that would fundamentally alter the tax code and the way political campaigns can be funded.
According to Falwell and the ACLJ lawyers, pastors should be allowed to campaign for a candidate for political office, encourage their followers to support that candidate and still remain free from federal income taxation, unlike all other groups and individuals that support candidates for public offices. Falwell understands that he and other television preachers could be much more effective at rousing evangelicals to elect Republicans if federal tax law would allow for tax-free political contributions.
Falwell could dedicate a televised sermon from his Lynchburg, Va., church to the re-election of President George W. Bush, broadcast it nationwide and not endanger the church's tax-exempt status. And Falwell's congregants would be able to make tax-free contributions to his Thomas Road Baptist Church in support of religious speech as well as Republican politicians.
Falwell is not alone in seeking to bolster the Religious Right's influence on public policy. As The New York Times noted in a 2002 article, under the headline "Churches on Right Seek Right to Back Candidates," more than a dozen religious conservative lobbying groups are pressuring Congress to change the tax rules.
The leading congressional supporter for altering tax law is Rep. Walter B. Jones (R-N.C.), who in early 2003 submitted the Houses of Worship Free Speech Restoration Act (H.R. 235), a bill meant to undo the IRS regulation. Jones sent an e-mail late last year to 400,000 social conservatives nationwide urging them to pressure Congress to pass the measure.
"By gaining nationwide attention to this bill, the president and members of Congress will know that you know about the censorship going on in our churches, synagogues and mosques and you want it stopped," Jones' e-mail declared.
Jones has lobbied for such legislation for several years now. A similar proposal died in Congress in 2002. Not long after the first bill's defeat in the House on Oct 2, 2002, Jones assured supporters in a Focus on the Family e-mail that he had no intention of giving up the battle.
"The Lord has given me this energy; the Lord has selected me to be his foot solider," Jones said.
The North Carolina congressman has been successful at garnering more support for the new bill, which like its predecessor was written with the help of ACLJ attorneys. The measure, which is pending in the House Committee on Ways and Means, has more than 160 cosponsors, including House Majority Leader Tom DeLay (R-Texas). Legislative staff at Americans United for Separation of Church and State, as well as other public interest groups, believe the bill is gaining momentum and that its chances for being approved by the House are greater each day.
If enacted, H.R. 235 would change federal tax law to permit religious organizations to become directly involved in electioneering as long as their political activities occur at a religious gathering. The measure says houses of worship cannot have their tax exemption revoked because of "the content, preparation, or presentation of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings."
As noted in a study of the bill by OMB Watch, a nonprofit group that promotes government accountability, a congregation could use funds raised through tax-deductible contributions to fund partisan campaign activities. Televangelists could endorse a candidate during their Sunday morning sermons and then re-distribute those sermons far and wide, without fear of jeopardizing their churches' tax-exempt status. Clergy would be able to instruct their congregations on how to vote on Election Day, and candidates would solicit support and donations from the pulpit.
Americans United opposed Jones' first measure, and AU and its allies have urged Congress to prevent the latest version from becoming a reality. AU argues that Jones and his Religious Right friends are perpetuating falsehoods about religion in public life in an attempt to turn churches and other houses of worship into major political players.
AU Executive Director Barry Lynn and several members of the House from both sides of the aisle have continued to point out that clergy may and do address public policy concerns without running afoul of federal tax law. Like all other nonprofits, however, churches may not endorse or oppose candidates for public office or use their resources in partisan campaigns.
"Nonprofit groups receive their tax exemptions because their work is charitable, educational or religious," Lynn said. "Those tax breaks come with conditions namely that those groups refrain from using their resources to engage in partisan politicking. People donate to their houses of worship knowing those donations are not going to support a politician's campaign."
Since the 1950s, the federal tax code has provided an exemption from federal income taxes for nonprofits of all types as long as they don't "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."
A report on H.R. 235 issued last summer by the nonpartisan Congressional Research Service (CRS) gives examples of the types of political activities that nonprofits must refrain from engaging in. The CRS says that religious groups cannot endorse or oppose particular candidates, donate to political campaigns or disseminate biased voter guides during an election season.
The report, however, also notes that houses of worship may engage in many types of political activities without losing their tax-exempt status. Nonprofit groups may take stands on particular issues or legislation, conduct public forums in which political questions are considered and sponsor nonpartisan voter registration drives.
Televangelists with large audiences, such as Robertson, Falwell, D. James Kennedy and Joyce Meyer, insist that religious voices must be allowed to become more directly involved in electioneering, because it is often a fundamental part of their religious mission. By providing tax-exempt status only to churches and other houses of worship that refrain from politicking, they say, the IRS Code is hostile toward religion and minimizes its influence in politics.
The National Religious Broadcasters has urged its members to lobby for the passage of the Jones bill because it would "restore free speech to our members who broadcast their church services." Frank Wright, the NRB president, maintains that for nearly 50 years the "Internal Revenue Code has censored religious expression and restrained its free exercise."
Ira Lupu, a constitutional law scholar and professor at the George Washington University's School of Law, dismissed those arguments. Lupu told Church & State that Rep. Jones' bill, instead, singles out religion for preferential treatment.
"If religious groups want to engage in partisan political campaigns, they must like other non-political organizations segregate their political activities from their educational or religious work," Lupu said
Lupu said that those advocating for the Jones bill are seeking special status for religious speech, not seeking to restore it. He said that if the Jones bill were to become law it is unlikely to withstand a challenge on constitutional grounds.
Lupu noted that the U.S. Supreme Court has invalidated a government-created tax exemption that benefited only religious groups.
In 1989, the high court ruled in Texas Monthly v. Bullock that a state law giving tax breaks only to religious publishers violated the separation of church and state. Justice William Brennan, writing for the majority, found the law an affront to the First Amendment because the tax break was not afforded to other publishers.
"If the state chose to subsidize, by means of a tax exemption, all groups that contributed to the community's cultural, intellectual, and moral betterment, then the exemption for religious publications could be retained" provided that tax exemption covered a wide array of book publishers, Brennan wrote.
Beyond pushing the claim that the IRS tax exemption rules unconstitutionally restrict religious freedom, the backers of the Jones bill frequently advertise the measure as having the support of all kinds of religious entities.
A website, called "HR.235 Houses of Worship Free Speech Restoration Act," (www.hr235.org) includes a list of supporters of the bill, which is dominated by socially conservative religious leaders. Backers include Franklin Graham, Richard Land of the Southern Baptist Convention, David Keene of the American Conservative Union, Roberta Combs of the Christian Coalition, Sandy Rios of Concerned Women for America, D. James Kennedy, the Rev. Frank Pavone of Priests for Life, right-wing organizer Grover Norquist, James Dobson of Focus on the Family, Gary Bauer of American Values and Pat Robertson's ACLJ.
Some in Congress have taken that website's claim of universal support for the Jones bill to task. In an Oct. 15 letter to his colleagues, Rep. Chet Edwards (D-Texas) challenged the website's claim that "all religions, of all faiths support" the bill.
"This claim of unanimous support by the sponsors of this legislation could not be further from the truth," Edwards wrote. "In fact, most faith traditions in America are actively opposing this legislation and have gone to great lengths to communicate their opposition to the very premise of the bill itself."
Edwards' letter listed several religious groups that had sent letters to Congress opposing the Jones bill, including the General Board of Church & Society of The United Methodist Church, Seventh-day Adventist Church, Presbyterian Church (USA), the Episcopal Church, the Baptist Joint Committee on Public Affairs and the Central Conference of American Rabbis.
In a mid-November letter to U.S. representatives, the Episcopal Policy Network urged the House to defeat the Jones bill.
"Although the bill purports to protect houses of worship, it actually removes important safeguards that protect our religious liberty," wrote Maureen Shea, director of the church's Office of Government Relations. "Religious leaders have already the ability to speak out on any number of social issues facing society and Congress from their houses of worship. Current law simply limits groups from being both a tax-exempt ministry and a partisan political entity. Further, those houses of worship that wish to participate politically for or against candidate(s) seeking political office can give up their tax-exempt status and participate fully in the election process."
Some House members have also raised concerns about the measure's effect on the Bipartisan Campaign Reform Act, the 2002 law intended to curb unlimited campaign contributions known as "soft money."
Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.), who led the fight for the campaign finance bill in the House, issued a letter to their colleagues on Nov. 10 noting that the Jones bill "opens a dangerous loophole for a new form of soft money in elections."
Shays and Meehan, citing a report by the Campaign Legal Center, wrote that H.R. 235 "would turn houses of worship into makeshift campaign ad recording studios, enabling them to broadcast partisan messages delivered during religious services."
The group's report, which is available on its website, www.campaignlegalcenter.org, states that the Jones bill would "permit certain forms of activity by houses of worship with significant campaign finance implications, particularly the widespread distribution of election-related presentations made during religious services or gatherings, including through television, radio, and other media."
Americans United and its allies are again engaged in building opposition to the church-based politicking bill. Religious Right activists are not concerned with protecting religious liberty, say separationist groups, but only with expanding their influence in the political arena.
Some among of the Religious Right have employed shrill language and alarmist claims to further their agenda. A pastor in a column published this summer by the Southern Baptist Convention's daily news service, the Baptist Press, claimed the Jones bill "pries the state's paws off the pulpit."
Some recent polling by the Pew Research Center shows that large numbers of Americans are not keen on church-based politicking.
A 2001 poll by the Pew Research Center on the mixing of religion and politics revealed that a majority of Americans oppose religious leaders campaigning for politicians in houses of worship. Sixty-five percent of respondents said they did not "think it is ever right for clergy to discuss political candidates or issues from the pulpit." A Pew poll in 2002 asked whether churches should come out in favor of one candidate over another. Seventy percent of respondents said churches should not.
Along with opposing the Jones bill, Americans United continues to reach out to religious leaders and houses of worship with information detailing the appropriate political activities they may participate in without endangering their tax-exempt status. Americans United's website has a special section on houses of worship and politics. AU has also produced a pamphlet, "Religion, Partisan Politics and Tax Exemption: What Federal Law Requires And Why," the text of which is available on the website.
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