A ‘chilling effect’ on free speech?

The IRS has concluded a three-year investigation into an L.A. church, deciding not to punish them while still claiming they believe the church “broke the law”.

In its latest letter to All Saints, dated Sept. 10, the IRS said the church continues to qualify for tax-exempt status, but said that Regas’ sermon did amount to intervention in the 2004 presidential race. The letter offered no details or explanation for either conclusion.

That sounds about par for the course if you’re trying to force the so-called ‘rule of law’ on people while also doing everything you can to avoid scrutiny of your interpretation of the law. Or, it also rings familiar as the IRS knowing they have no case against the church, but trying nonetheless to intimidate them into silence.

This also shows that just because you may be just about the only group still supporting the President’s agenda, you will be afforded no protection from the administration once you go ‘off the reservation’, so to speak. Republicans became alarmed in the 90’s that President Clinton may have been using the IRS to go after his political enemies. Will they show the same alarm that the IRS is trying to chill speech over the most critically important issue of the moment?

I’ll ignore for the moment my disgust at the general idea that tax-exempt organizations must remain silent from political activism. So was this church violating the law? OMBWatch.org has a report from the Congressional Research Service on the history and meaning of the ban. We can thank (Senator at the time) Lyndon Johnson for the ban on political campaigning …

The political campaign prohibition was enacted as part of the Internal Revenue
Code of 1954. The provision was added by Senator Lyndon Johnson as a floor
amendment. Upon introducing the amendment, Senator Johnson analogized it to the
lobbying limitation; however, he mischaracterized the lobbying limitation by saying
that organizations that lobbied were denied tax-exempt status, as opposed to only
those organizations that substantially lobbied. The legislative history contains no
further discussion of the prohibition, including whether Senator Johnson’s overlybroad
description of the lobbying provision and inaccurate analogy were noticed.
Although Senator Johnson’s motives behind the provision are not clear from the
legislative history, it has been suggested that he proposed it either as a way to get
back at an organization that had supported an opponent or because he wished to offer
an alternative to another Senator’s proposal that would have denied tax-exempt status
to organizations making grants to organizations or individuals that were deemed to
be subversive.

Wonderful, so a church in 2007 cannot talk about war because a Senator in 1954 may have tried to exact revenge on a political opponent, using an erroneous argument as his justification. So what does the ban mean?

The organizational definition in IRC § 501(c)(3) prohibits these organizations
from “participating in, or intervening in (including the publishing or distributing of
statements), any political campaign on behalf of (or in opposition to) any candidate
for public office.” The IRC does not further elaborate on the prohibition.

Doesn’t sound too bad, so what actually happened at the church? From the LA Times article …

One of Southern California’s largest and most liberal congregations, All Saints came under IRS scrutiny after a sermon two days before the 2004 presidential election by a guest speaker, the Rev. George F. Regas. In his sermon, Regas, the church’s former rector, imagined Jesus participating in a political debate with then-presidential candidates George W. Bush and John F. Kerry.

Regas did not endorse either candidate, saying that “good people of profound faith” could support either one. But he strongly criticized the war in Iraq and said that Jesus would have told Bush that his preemptive war strategy in Iraq “has led to disaster.”

Even though they’re banned from political campaigning, tax-exempt organizations ARE allowed to engage in issue advocacy. From the CRS report …

On the other hand, IRC § 501(c)(3) organizations are allowed to conduct
activities that are not related to elections, such as issue advocacy, lobbying for or
against legislation, and supporting or opposing the appointment of individuals to
nonelective offices.
Additionally, IRC § 501(c)(3) organizations are allowed to conduct certain
election-related activities so long as the activities are non-partisan and do not indicate
a preference for any candidate.

So an argument can certainly be made that the church was in no way violating the law. What was the argument of those saying it did? Some of the factors used by the IRS to determine issue advocacy by tax exempt groups may be illegal, again from the CRS …

Key factors that indicate an issue advocacy
communication is not political campaign intervention include:
! the communication does not identify any candidates for a given
public office,
! the communication does not express approval or disapproval for any
candidate’s positions and/or actions,
! the communication is not delivered close in time to an election,

So the problem for the church was that the sermon did mention both Bush and Kerry, despite not endorsing either one. As well, the timing (2 days before an election) was problematic as well. Nonetheless, the vagaries of this ban sure seemed to indicate that by not endorsing either candidate, the church was avoiding the intent of the law, whose original concern was the tax-deductible donations being used for political advocacy. While the IRS can make an argument that they violated the law, the church seemingly can make a much stronger case that they were obeying the spirit of the law by refusing to endorse any candidate.

I could not find any cases of the Bush administration prosecuting a church because of it taking a pro-war (or pro-Bush) stance. Nonetheless, the only conclusion I can draw is that not even the church is immune from the crackdowns of the Bush administration, no matter how friendly the administration is supposedly seen as being to religious people. You can’t have totalitarianism without total, after all.

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2 Responses to “A ‘chilling effect’ on free speech?”

  1. flatcap Says:

    No one forces churches to file for 501(c)(3) status. They do so in order to make contributions deductible, thereby squeezing more cash out of their congregations. It’s a simple matter of churches selling their independence for a bit of cash. Correction, quite a lot of cash.

  2. rberkes Says:

    That’s true, but I don’t really have a problem with what a church chooses to do, but more with the government and how it chooses to enforce it’s laws. The IRS under both Clinton and now Bush has looked like a political tool for the man in charge. Perhaps it’s always been that way. I guess I don’t understand why a church or other non-profit should give up it’s ability to lobby once it chooses to become tax-exempt. The history behind the rule and how it became law only leaves me more concerned. Sounds to me sorta like the reverse of ‘no taxation without representation’. It’s become ‘no advocation without taxation’.


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