JURIST - Paper Chase: Sunday, September 28, 2008

[JURIST] More than 30 US pastors planned to preach about the "moral qualifications" of political candidates [news release] Sunday, challenging federal tax laws [IRS backgrounder] that prohibit tax-exempt entities from engaging in political campaigns. The conservative Alliance Defense Fund (ADF) [advocacy website] recruited the pastors as part of its Pulpit Initiative [ADF materials], which the group says is "designed to protect the First Amendment rights of pastors in the pulpit." The restriction originated with a 1954 amendment to the tax code [25 USC 501(c)(3) text], which defines a tax-exempt organization, in part, as one that "does not participate in, or intervene in ... any political campaign on behalf of (or in opposition to) any candidate for public office." In a white paper [PDF text] about the initiative, ADF said it

believes that the Johnson amendment is unconstitutional in restricting the expression of sermons delivered from the pulpits of churches. This initiative is designed to return freedom to the pulpit by allowing pastors to speak out on the profound and important issues of the day.

Americans United for Separation of Church and State [advocacy website] is promising to report the pastors [press release] to the Internal Revenue Service (IRS) [official website], calling tax exemption a privilege that is subject to limitations. An IRS spokesman said the agency is aware of the ADF's plans and will "take action as appropriate." The New York Times has more.

Earlier this year, the IRS announced a program [press release] to educate organizations about the restriction on political campaigning, noting that tax-exempt entities may take positions on political issues and advocate or oppose ballot initiatives and legislation under some circumstances. In 2000, the US Court of Appeals for the District of Columbia Circuit [official website] affirmed [opinion text] a district court decision [opinion, PDF] upholding the constitutionality of the restriction on political campaigning by tax-exempt organizations. In that case, a church challenged the revocation of its tax exemption for placing newspaper advertisements that implored Christians to vote against Bill Clinton in the 1992 presidential election. The court rejected the church's arguments that its rights under the First and Fifth Amendments [text] were violated, finding that the IRS had neither substantially burdened the church's free exercise rights nor singled out the church for prosecution.