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Is your church afraid of the IRS?  I’m not talking about a healthy fear of following the law to avoid the unpleasant consequences of a deserved tax audit.  Instead, I’m talking about a certain level of paranoia that leads to second-guessing  or avoiding actions in your church.  Some churches resort to censoring their own activities out of paranoia over what the IRS might do.  First Amendment lawyers call this a “chill on speech,” because it involves self-censorship to avoid the reach of an overbroad or vague law.

One church in North Carolina recently experienced this chilling effect, although they handled the situation well.  Tabor City Baptist Church puts out a newsletter, and in the most recent edition, printed an invitation for its members to come to a luncheon featuring a candidate for state representative.  Immediately, church members questioned whether the church had violated IRS regulations.  The issue even made it on the local media who came to interview the pastor.  Pastor Bruce Schimdt didn’t back down. He responded to the media, stating: “We are not giving an endorsement as a church, which we’re prohibited to do as a tax exempt organization. But we feel like it’s very very important to give acknowledgement and encourage people to pray and do their civic duty and step up and be involved in the political process… We are honored to pray for and acknowledge our leaders, Democrat or Republican.”

Here’s the point:  under the tax code, this church did nothing wrong.  They made an opportunity available to one candidate that they would also give to any other candidate.  The church’s actions do not violate the tax code and they shouldn’t fear the IRS breathing down their necks with an audit.  Yet, despite the fact that the church did not violate the law, questions were raised by members, the media came calling, and the issue went public.  I am sure the general stress level among the church staff and the membership also rose considerably.  And the overall message was that churches should just stay away from this area because it is simply too dangerous.

Situations like this are precisely why Alliance Defending Freedom created Pulpit Freedom Sunday.  No pastor or church should fear the IRS when they use their faith to engage candidates in an election.  The vagueness of the IRS regulations on churches leads to a very real chill on a church’s speech and activities.  It’s time to remove that chill and allow churches to engage the political realm with their faith without fearing retaliation or punishment by the government.  Pulpit Freedom Sunday aims to do just that – to have the Johnson Amendment in the tax code declared unconstitutional so that pastors and churches don’t have to fear the IRS.

Pulpit Freedom Sunday is an opportunity for pastors to preach sermons about the election or about the candidates running for office in light of Biblical truth.  If you are a pastor, will you consider signing up for Pulpit Freedom Sunday?  if you are not a pastor, please tell your pastor about Pulpit Freedom Sunday and encourage him to sign up to participate.  Pastors have a right to speak freely on the issue of elections and candidates and should never fear government punishment for shining the light of their faith in this area of life.

 

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ADF Senior Legal Counsel - Church Project

Erik Stanley’s column looks at the apology the IRS offered for targeted conservative groups, and points out the apology isn’t sufficient because the IRS bullying continues—as it has for nearly 60 years—via the Johnson Amendment.

In fact, the IRS has been exercising that kind of power since 1954 with the Johnson Amendment, which 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. Yet there is no definition of what it means to “indirectly” participate in a campaign.

Titled “IRS apologizes, more apologies necessary” – it can be viewed here

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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.

 

Author

ADF Senior Legal Counsel - Church Project

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.

Author

ADF Senior Legal Counsel - Church Project

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.

Author

ADF Senior Legal Counsel - Church Project

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