The revelations about the IRS targeting conservative groups seem to keep coming.  According to Fox News, the IRS targeting went broader than originally reported. Apparently, the IRS’ additional scrutiny “went beyond targeting ‘Tea Party’ and ‘patriot’ groups to include those focused on government spending, the Constitution and several other broad areas.”

Michigan representative Mike Rogers was on Fox News Sunday where he said: “The conclusion that the IRS came to is that they did have agents who were engaged in intimidation of political groups… I don’t care if you’re a conservative, a liberal, a Democrat or a Republican, this should send a chill up your spine. It needs to have a full investigation.”

This news is bad.  And it should send a chill up our spines to know that a very powerful branch of the federal government was specifically targeting political groups with which it disagreed.  Such behavior is more fitting in an authoritarian style of government and should have no place in our constitutional republic.  It is chilling to be labeled, even in a indirect way, as an enemy of the state and to have the power of the federal government arrayed against you.

But what should be reported is that the targeting by the IRS goes even deeper than what is just reported.  Because the IRS has been targeting churches since the passage of the Johnson Amendment in 1954.  There is no difference between what the IRS has been caught doing with conservative groups and what the IRS has done to churches for the last 59 years.  Both are intimidation.  Imagine the impact of a system of intimidation targeting a particular group left unchecked for over half a century.  Because that is exactly what has happened with America’s churches.

The Johnson Amendment was passed in 1954 because Senator Lyndon Johnson did not like the views of his political opponents.  It was a naked attempt to keep the reins of raw power in his own hands and to silence non-profit groups who opposed his reelection because they believed he was soft on communism.  Johnson devised a clever way to target these groups, and his amendment to 501(c)(3) of the tax code has since been applied to intimidate churches and pastors across the country into silence on the moral qualifications of candidates and the positions they hold.

Free speech is a fragile thing and it needs breathing space to exist.  The power of government can all too easily squelch dissent.  In 1926, The U.S. Supreme Court stated that vague laws chill free speech because “People of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.”  What this means is that if the government enacts a vague speech regulation, people will not know where the line is between what is permissible and what is prohibited.  Thus, they will “chill” their own speech.  Stated more simply, people will not speak at all if there is uncertainty over whether the power of government will come down on them if they say something that might violate the law.  This is what we awe seeing first hand with the revelations of the IRS’ targeting of conservative groups.  And this has been the problem with the Johnson Amendment and the IRS’ vague regulations enforcing it.  The law does not give any certainty over what is allowed and what is permitted from the pulpits of America’s churches.  So pastors, concerned that they might say something that would trigger the enforcement power of the IRS (a very powerful government agency), stay silent.

It’s good to shine the light on to the private and devious machinations of the federal government when those occur.  But let’s recognize that conservative groups have not been the only ones in the crosshairs of the IRS.  America’s churches have suffered for too long under the intimidation of the IRS.  The best way to shine the light on that intimidation is to stand in the face of it.  That’s why we launched Pulpit Freedom Sunday. And that’s why we hope that if you are a pastor, you will go today to sign up to participate in Pulpit Freedom Sunday.  It’s time for the IRS to stop using its power to squelch free speech and freedom of religion of America’s churches.

The IRS recently apologized for targeting conservative groups with audits and investigations during the 2012 election.  In some cases, the IRS asked about political affiliations, lists of donors, and family members’ activities.  Apparently, the groups were targeted because they had the words “tea party” or “patriot” in their names.  An IRS official apologized, saying, “That was wrong. That was absolutely incorrect, it was insensitive and it was inappropriate. That’s not how we go about selecting cases for further review… The IRS would like to apologize for that.”

What the IRS did here is unconstitutional.  It is always outrageous when the coercive powers of government are used for political intimidation.  And I am glad that the IRS has apologized for its actions.  But this story illustrates the problem when we allow government agencies and officials to exercise unfettered power to enforce vague and ambiguous laws.

The IRS has in fact been exercising that kind of power since 1954 with the Johnson Amendment that allows it to censor a pastor’s sermon from the pulpit.  The Johnson Amendment prohibits “participating in or intervening in” a political campaign “on behalf of or in opposition to a candidate for public office.”  The IRS has interpreted this over the years to say that churches cannot “directly or indirectly” participate in a campaign.  But there is no definition of what it means to “indirectly” participate in a campaign.  The IRS tells churches that it must consider “all the facts and circumstances” to determine when a church has violated the Johnson Amendment.  Basically, this means that it won’t tell churches with precision what speech violates the Johnson Amendment and instead will wait and evaluate everything after the fact to then determine if the church has violated the law.  The IRS even went so far as to say that a church could violate the Johnson Amendment by the use of “code words” where it doesn’t even have to name a candidate specifically but if it speaks in a certain way that the IRS believes supports or opposes a candidate, then that could violate the law.

The point here is that the IRS enforcement of the Johnson Amendment is a situation particularly susceptible to abuse of power.  The IRS is unaccountable for who it investigates, when it investigates, or even whether it investigates violations of the Johnson Amendment.  It issues vague pronouncements designed to intimidate churches into silence out of fear of an IRS audit or penalties.  The IRS’ recent apology demonstrates that it has broad, coercive, and unconstitutional powers that can be used improperly to chill speech and intimidate the exercise of constitutional rights.  But that’s what the IRS has been doing with the Johnson Amendment since 1954. The situation is even worse when considering the fact that the Johnson Amendment was passed in the first place to silence political opponents of Senator Lyndon Johnson.

The Johnson Amendment is an unconstitutional restriction on a pastor’s right to speak freely from the pulpit and it allows the IRS to utilize intimidation to enforce the law and chill constitutionally protected speech.  Alliance Defending Freedom has been fighting the Johnson Amendment and its unconstitutional effects on churches and pastors.  That’s why we started Pulpit Freedom Sunday in 2008.  If you are a pastor, sign up to participate in Pulpit Freedom Sunday on June 9, 2013.  This year’s Pulpit Freedom Sunday is about marriage, but it remains about the broader principle that no IRS official should ever tell a pastor what he can or cannot say from the pulpit.

The recent IRS apology is a beginning.  But the IRS should also apologize for 59 years of intimidation of pastors and churches.  It’s time to end the Johnson Amendment’s regime of censorship.

For some time now, the IRS has not been auditing churches.  As I explained in more detail in this post, the IRS’ decision to “suspend” church audits stems from a 2009 federal court decision finding the IRS’ regulations on church audits to be unlawful.  Since that decision, the IRS, to the best of anyone’s knowledge, has not been auditing any churches.  It has said since 2009 that it is preparing new regulations that will enable it to begin auditing churches again, but we have not seen those regulations finalized.

However, at a recent tax conference, Treasury Attorney-Advisor Ruth Madrigal said that the IRS’ long-awaited rules on church audits are “close” to being finalized.  So what does this mean for churches?

What this means is that once the IRS’ regulations on auditing churches are finalized, then it is logical to assume that the IRS will begin auditing churches again.  Whether this means that the IRS will audit churches that participated in Pulpit Freedom Sunday remains to be seen.  We will have to closely watch the IRS’ actions once the church audit rules are finalized.

But ultimately, the constitutional rights of pastors and churches do not turn on whether the IRS decides to audit churches.  Alliance Defending Freedom has said for years that the Johnson Amendment in section 501(c)(3) of the tax code is unconstitutional.  If the IRS audits and penalizes churches for something it believes violates the Johnson Amendment, then Alliance Defending Freedom stands ready to defend the constitutional rights of America’s pastors to speak biblical truth uncensored by the IRS.

For now, we will continue to monitor the situation and will make you aware of any changes the IRS proposes.  As we say here at Alliance Defending Freedom, “You watch your flock, and we’ll watch the horizon.”  And if you have not yet signed up to participate in Pulpit Freedom Sunday, please do so today.  This year, Pulpit Freedom Sunday is all about marriage, and America desperately needs to hear what God says about marriage at this crucial time.  Signing up for Pulpit Freedom Sunday is easy and we hope to see thousands of pastors standing united on June 9, 2013, preaching biblical truth about marriage.  Will you be one of those pastors?  Please sign up today.

Recently, the Freedom From Religion Foundation filed a lawsuit in federal court against the IRS for failing to enforce the Johnson Amendment in the tax code against pastors and churches.  The lawsuit requests the court to enter an injunction against the Commissioner of the IRS to prohibit him from “continuing a policy of non-enforcement of the electioneering restrictions against churches and religious organizations.”  One of the issues the complaint raises as an example is Pulpit Freedom Sunday. The complaint states: ”More than 1500 clergy reportedly violated 501(c)(3) on October 7, 2012, in a deliberate and coordinated display of noncompliance with the electioneering restrictions of 501(c)(3), including prominent megachurches.”  The complaint goes on to allege that the IRS non-enforcement of the Johnson Amendment results in favoritism toward churches in violation of the Establishment Clause.

Legally speaking, this complaint has no merit and should be summarily dismissed.  As I detailed in an earlier blog, the IRS is not following a policy of non-enforcement.  Churches must remember that the IRS has not given up on auditing churches or enforcing the Johnson Amendment.

The lawsuit also has an insurmoutable legal hurdle in its way.  In order to bring a lawsuit against the federal government, a plaintiff must prove that it will be harmed in a specific and concrete way that is different from the harm experienced generally by the public at large.  It will be difficult, if not impossible, for FFRF to prove that it is being harmed by the IRS’ delay in enforcing the Johnson Amendment.

This lawsuit is really about two things.  First, it is about generating publicity for Freedom From Religion Foundation.  A quick lawsuit, even if it gets dismissed at a later point, can earn some headlines.  But secondly, this lawsuit is about fostering FFRF’s radical agenda.  FFRF, a group of radical separationist atheists, envisions a future where the tax code is used against churches and pastors to punish them for speaking out on issues of candidates and elections.  It wants to see pulpit police in the churches of America, and fines and penalties meted out if a pastor crosses whetever line the government chooses to draw.  Ultimately, FFRF does not want people of faith to have a voice in the public square.  It wantswhat its name says – freedom from religion.  And that is where its agenda is at odds with the fundamental rights of America’s churches and pastors.

I expect for this lawsuit to be dismissed and hope to be able to bring you news of that dismissal.  But do not be fooled, groups like FFRF will not stop and will continue to push their radical agenda of silencing churches and pastors.  America’s churches are a crucial component to the survival of our country.  The voice of the church must be free to impact culture and society and as the liberty of the church is restricted, society and culture suffers and declines.  That’s why Alliance Defending Freedom created the Church Project – to defend the right of the Church to be the Church.  If your church’s rights are threatened or violated, please contact us so our attorneys can help.

Well, ninety days have come and gone since over 1,500 pastors participated in Pulpit Freedom Sunday on October 7,2012.  And the IRS has not taken any action against any of the pastors who participated.  Actually, the title of this blog post could have been “Four years and Counting” because Alliance Defending Freedom first launched Pulpit Freedom Sunday in 2008.  And since that time, Pulpit Freedom Sunday has occurred every year and thousands of pastors have participated through those four years.  But the IRS has not taken any action against any of the pastors who have ever participated in Pulpit Freedom Sunday.

Now before you may be tempted to become complacent or to think that the IRS has given up on auditing churches, you should remember as I wrote in an earlier blog, that the IRS is in a bit of a reorganization when it comes to auditing churches.  The IRS has not given up on auditing churches and an IRS official even warned churches to remain silent about the last election.  So what is going on then and why hasn’t the IRS sought to enforce the Johnson Amendment against the pastors who participated in Pulpit Freedom Sunday?

In 2011, I gave some reasons why I thought the IRS has not taken any action.  But the fact is that only the IRS know why it has chosen to remain silent. The IRS’ silence, though, should not cause us to lift up the pressure or to retreat from the battlefield.  The Johnson Amendment has been in place since 1954 and has been enforced now for over fifty-eight years.  It will not go away in an instant and the campaign to end the Johnson Amendment will be more akin to a siege than a blitzkrieg.  We must continue to press forward until the rights of churches and pastors are secured once and for all from the pernicious censorship that has occurred under the regime of the Johnson Amendment.

You can visit our Pulpit Freedom website to see a list of churches that participated in Pulpit Freedom Sunday on October 7, 2012.  Why not take a moment to encourage these courageous pastors or to perhaps begin attending these churches who are standing firm and contending for the faith in our culture?  And if you are a pastor and want more information about your right to speak freely from the pulpit, visit our website and become part of the battle to protect and defend your constitutional rights.