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80–331 2002

REVIEW OF INTERNAL REVENUE CODE

SECTION 501(c)(3) REQUIREMENTS FOR

RELIGIOUS ORGANIZATIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT

OF THE

COMMITTEE ON WAYS AND MEANS

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MAY 14, 2002

Serial No. 107–69

Printed for the use of the Committee on Ways and Means

(

ii

COMMITTEE ON WAYS AND MEANS

BILL THOMAS, California, Chairman

PHILIP M. CRANE, Illinois

E. CLAY SHAW, JR., Florida

NANCY L. JOHNSON, Connecticut

AMO HOUGHTON, New York

WALLY HERGER, California

JIM MCCRERY, Louisiana

DAVE CAMP, Michigan

JIM RAMSTAD, Minnesota

JIM NUSSLE, Iowa

SAM JOHNSON, Texas

JENNIFER DUNN, Washington

MAC COLLINS, Georgia

ROB PORTMAN, Ohio

PHIL ENGLISH, Pennsylvania

WES WATKINS, Oklahoma

J.D. HAYWORTH, Arizona

JERRY WELLER, Illinois

KENNY C. HULSHOF, Missouri

SCOTT MCINNIS, Colorado

RON LEWIS, Kentucky

MARK FOLEY, Florida

KEVIN BRADY, Texas

PAUL RYAN, Wisconsin

CHARLES B. RANGEL, New York

FORTNEY PETE STARK, California

ROBERT T. MATSUI, California

WILLIAM J. COYNE, Pennsylvania

SANDER M. LEVIN, Michigan

BENJAMIN L. CARDIN, Maryland

JIM MCDERMOTT, Washington

GERALD D. KLECZKA, Wisconsin

JOHN LEWIS, Georgia

RICHARD E. NEAL, Massachusetts

MICHAEL R. MCNULTY, New York

WILLIAM J. JEFFERSON, Louisiana

JOHN S. TANNER, Tennessee

XAVIER BECERRA, California

KAREN L. THURMAN, Florida

LLOYD DOGGETT, Texas

EARL POMEROY, North Dakota

ALLISON GILES, Chief of Staff

JANICE MAYS, Minority Chief Counsel

SUBCOMMITTEE ON OVERSIGHT

AMO HOUGHTON, New York, Chairman

ROB PORTMAN, Ohio

JERRY WELLER, Illinois

KENNY C. HULSHOF, Missouri

SCOTT MCINNIS, Colorado

MARK FOLEY, Florida

SAM JOHNSON, Texas

JENNIFER DUNN, Washington

WILLIAM J. COYNE, Pennsylvania

MICHAEL R. MCNULTY, New York

JOHN LEWIS, Georgia

KAREN L. THURMAN, Florida

EARL POMEROY, North Dakota

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records

of the Committee on Ways and Means are also published in electronic form. The printed

hearing record remains the official version. Because electronic submissions are used to

prepare both printed and electronic versions of the hearing record, the process of converting

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process

is further refined.

iii

C O N T E N T S

Page

Advisory of May 7, 2002, announcing the hearing ............................................... 2

WITNESSES

Internal Revenue Service, Steven T. Miller, Director, Exempt Organizations ... 6

Americans United for Separation of Church and State, Reverend Barry W.

Lynn ...................................................................................................................... 47

American Center for Law & Justice, Colby M. May ............................................. 23

Coral Ridge Ministries, D. James Kennedy ........................................................... 53

Hopkins, Bruce R., Polsinelli, Shalton & Welte .................................................... 12

Interfaith Alliance, Reverend C. Welton Gaddy .................................................... 38

National Council of Churches of Christ in the USA, Brenda Girton-Mitchell ... 56

New Bethel Baptist Church, Hon. Reverend Walter E. Fauntroy ....................... 43

SUBMISSIONS FOR THE RECORD

Alliance for Justice, Nan Aron, letter .................................................................... 85

American Jewish Committee, statement ............................................................... 86

American Jewish Congress, statement .................................................................. 86

Anti-Defamation League, New York, NY, statement ............................................ 92

Baptist Joint Committee, J. Brent Walker, and K. Hollyn Hollman, letter

and attachment .................................................................................................... 93

Bopp, James, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, statement ......... 94

Edwards, Hon. Chet, a Representative in Congress from the State of Texas,

statement .............................................................................................................. 100

Islamic Supreme Council of America, statement .................................................. 101

Jones, Hon. Walter B., a Representative in Congress from the State of North

Carolina, statement ............................................................................................. 102

Maryland Bible Society, Reverend Raymond T. Moreland, letter ....................... 103

National Council of Nonprofit Associations, Audrey R. Alvarado, letter ............ 103

OMB Watch, Kay Guinance, statement ................................................................. 104

People for the American Way, Ralph G. Neas, and Stephenie Foster, letter ..... 106

Religious Freedom Coalition, William J. Murray, statement .............................. 106

Rutkowski, Robert E., Topeka, KS, letter .............................................................. 107

Soka Gakkai International-USA Buddhist Association, Bill Aiken, letter ......... 109

Union of Orthodox Jewish Congregations of America, Harvey Blitz, Richard

B. Stone, Rabbi T. Hersh Weinreb, and Nathan J. Diament, letter ................ 109

Wood, William, Charlotte, NC, statement ............................................................. 110

Aiken, Bill, Soka Gakkai International-USA Buddhist Association, letter ........ 109

Alvarado, Audrey R., National Council of Nonprofit Associations, letter ........... 103

Aron, Nan, Alliance for Justice, letter ................................................................... 85

Blitz, Harvey, Union of Orthodox Jewish Congregations of America, letter ...... 109

Diament, Nathan J., Union of Orthodox Jewish Congregations of America,

letter ...................................................................................................................... 109

Foster, Stephenie, People for the American Way, letter ...................................... 106

Guinance, Kay, OMB Watch, statement ................................................................ 104

Hollman, K. Hollyn, Baptist Joint Committee, letter and attachment ............... 93

Murray, William J., Religious Freedom Coalition, statement ............................. 106

Neas, Ralph G., People for the American Way, letter .......................................... 106

Stone, Richard B., Union of Orthodox Jewish Congregations of America, letter .......................................................................................................................... 109

Walker, J. Brent, Baptist Joint Committee, letter and attachment .................... 93

Weinreb, Rabbi T. Hersh, Union of Orthodox Jewish Congregations of America, letter ............................................................................................................... 109

(1)

REVIEW OF INTERNAL REVENUE CODE SECTION 501(c)(3) REQUIREMENTS FOR RELIGIOUS ORGANIZATIONS

TUESDAY, MAY 14, 2002

HOUSE OF REPRESENTATIVES, COMMITTEE ON WAYS AND MEANS, SUBCOMMITTEE ON OVERSIGHT, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:00 p.m., in room

1100 Longworth House Office Building, Hon. Amo Houghton

(Chairman of the Subcommittee) presiding.

[The advisory announcing the hearing follows:]

2

ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

SUBCOMMITTEE ON OVERSIGHT

FOR IMMEDIATE RELEASE Contact: (202) 225–7601

May 7, 2002

No. OV–12

Houghton Announces Hearing on the Review

of Internal Revenue Code Section 501(c)(3)

Requirements for Religious Organizations

Congressman Amo Houghton (R–NY), Chairman, Subcommittee on Oversight of

the Committee on Ways and Means, today announced that the Subcommittee will

hold a hearing to review Internal Revenue Code (I.R.C.) Section 501(c)(3) requirements for religious organizations. The hearing will take place on Tuesday, May

14, 2002, in room 1100 Longworth House Office Building, beginning at 2:00

p.m.

In view of the limited time to hear witnesses, oral testimony at this hearing will

be from invited witnesses only. However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by

the Subcommittee and for inclusion in the printed record of the hearing.

BACKGROUND:

I.R.C. § 501(c)(3) organizations—such as religious, charitable, educational, scientific, and literary organizations—enjoy certain benefits because of their tax-exempt status:

• Being exempt from Federal income taxation under I.R.C. § 501(a), and

• Allowing contributors to take tax deductions under I.R.C. § 170(a) for charitable

contributions.

However, § 501(c)(3) organizations also have certain restrictions and limitations

imposed on their allowable activities, including lobbying and political activity.

All § 501(c)(3) organizations may attempt to influence legislation as long as it does

not constitute a ‘‘substantial part’’ of the organizations’ overall activities. In addition, § 501(c)(3) organizations can elect to use an alternative I.R.C. § 501(h) safe-harbor ‘‘expenditure test,’’ in which the I.R.C. outlines specific expenditure limits in

I.R.C. § 4911 that may be spent on lobbying activities. However, churches, along

with church-related organizations outlined in I.R.C. § 501(h)(5), were excluded from

this ‘‘expenditure test’’ election at their own request.

All § 501(c)(3) organizations must not ‘‘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.’’ Violation of this political activity

prohibition, which has been in existence since 1954, can result in the organization

losing its tax-exempt status and the imposition of certain excise taxes.

The Internal Revenue Service (IRS) has revoked one § 501(c)(3) church’s tax-exempt status for violation of this political activity prohibition. In 1992, the Church

at Pierce Creek purchased a full-page advertisement in two newspapers that attacked the views of then-Governor Bill Clinton. The bottom of the advertisement

stated that ‘‘[t]ax-deductible donations for this advertisement gladly accepted.’’ The

3

IRS found that the newspaper advertisement was prohibited intervention in a political campaign.

In announcing the hearing, Chairman Houghton stated, ‘‘This is a very complex

issue, and I look forward to a careful review of this section of the tax code.’’

FOCUS OF THE HEARING:

The focus of the hearing is to review the history of and current requirements for

I.R.C. § 501(c)(3) organizations. In addition, the Subcommittee will hear testimony

on two bills, H.R. 2357, the Houses of Worship Political Speech Protection Act, and

H.R. 2931, the Bright-Line Act of 2001, that are intended to revise current tax law

for religious organizations so as to then permit certain activities that presently are

prohibited (political campaigns) and limited (lobbying) by I.R.C. § 501(c)(3) organizations.

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

Please Note: Due to the change in House mail policy, any person or organization

wishing to submit a written statement for the printed record of the hearing should

send it electronically to hearingclerks.waysandmeans@mail.house.gov, along with a

fax copy to (202) 225–2610, by the close of business, Tuesday, May 28, 2002. Those

filing written statements who wish to have their statements distributed to the press

and interested public at the hearing should deliver their 200 copies to the Subcommittee on Oversight in room 1136 Longworth House Office Building, in an open

and searchable package 48 hours before the hearing. The U.S. Capitol Police will

refuse sealed-packaged deliveries to all House Office Buildings.

FORMATTING REQUIREMENTS:

Each statement presented for printing to the Committee by a witness, any written statement

or exhibit submitted for the printed record or any written comments in response to a request

for written comments must conform to the guidelines listed below. Any statement or exhibit not

in compliance with these guidelines will not be printed, but will be maintained in the Committee

files for review and use by the Committee.

1. Due to the change in House mail policy, all statements and any accompanying exhibits for

printing must be submitted electronically to hearingclerks.waysandmeans@mail.house.gov, along

with a fax copy to (202) 225–2610, in Word Perfect or MS Word format and MUST NOT exceed

a total of 10 pages including attachments. Witnesses are advised that the Committee will rely

on electronic submissions for printing the official hearing record.

2. Copies of whole documents submitted as exhibit material will not be accepted for printing.

Instead, exhibit material should be referenced and quoted or paraphrased. All exhibit material

not meeting these specifications will be maintained in the Committee files for review and use

by the Committee.

3. Any statements must include a list of all clients, persons, or organizations on whose behalf

the witness appears. A supplemental sheet must accompany each statement listing the name,

company, address, telephone and fax numbers of each witness.

Note: All Committee advisories and news releases are available on the World

Wide Web at http://waysandmeans.house.gov/.

The Committee seeks to make its facilities accessible to persons with disabilities.

If you are in need of special accommodations, please call (202) 225–1721 or (202)

226–3411 TTD/TTY in advance of the event (four business days notice is requested).

Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above.

We are delighted you are here. This ought to be a very interesting

Chairman HOUGHTON. Good afternoon, ladies and gentlemen.

f session.

I would like to make a few remarks, and I would like to suggest

that Mr. Coyne make remarks if he wants to. Anybody else who

4

would like to say something to begin the session, fine; and then we

will turn it over to Mr. Miller and Mr. Hopkins.

So we are here today, as most of you know, to talk about an important issue, which is the proper role of religious groups in politics

and lobbying. section 501(c)(3) of the Tax Code establishes requirements for charities, such as the United Way, museums, nonprofit

hospitals, animal shelters, as well as churches, mosques, synagogues, and other religious groups. These groups are tax exempt.

Donors who make contributions to these worthwhile organizations

receive the benefit of having the contribution tax deductible.

Two Members of Congress, my good friend, Mr. Philip Crane, a

Member of the Committee on Ways and Means, and Representative

Walter Jones have introduced legislation to change the Tax Code.

It would allow churches to engage in greater activity than is now

currently permitted.

We will hear from the Internal Revenue Service (IRS) and one

of the leading experts of tax-exempt organizations in a minute on

what the law now requires and how it is enforced. Then we are

going to hear from interested parties who represent a variety of different backgrounds and points of view on this issue.

The key issue at the moment is the right balance, and how does

that balance measure with the Constitution. In other words, what

activity should be permitted through one’s place of worship.

I also look forward to what I am sure will be an important and

enlightening discussion from the Members of the panel.

So I am pleased now to yield to my great friend and Ranking

Democrat, Mr. Coyne.

[The opening statement of Chairman Houghton follows:]

Opening Statement of the Hon. Amo Houghton, a Representative in Congress from the State of New York, and Chairman, Subcommittee on Oversight

Good afternoon. We are here today to talk about an important issue—what is the

proper role of religious groups in politics and lobbying. Section 501(c)(3) of the tax

code establishes requirements for charities such as the United Way, museums, nonprofit hospitals, animal shelters, as well as churches, mosques, synagogues, and

other religious groups. These groups are tax-exempt. Donors who make contributions to these worthwhile organizations receive the benefit of having the contribution tax-deductible.

Two Members of Congress, my good friend Rep. Phil Crane, a Member of the

Ways and Means Committee, and Rep. Walter Jones, have introduced legislation to

change the tax code. It would allow churches to engage in greater activity than is

currently allowed.

We will hear from the IRS and one of leading experts in exempt organizations

on what the law now requires and how it is enforced. Then, we will hear from interested parties who represent a variety of different backgrounds and points of view

on the issue.

The key issue is the right balance—and how does that balance measure with the

Constitution. In other words, what activities should be permitted through one’s

place of worship? I look forward to what I am sure will be an important and enlightening discussion.

Mr. COYNE. Thank you, Mr. Chairman, and welcome.

Today’s hearing will provide a hearing record on the current law

f as it applies to political and lobbying activities by churches and

charities. Specifically, we would review legislation that would

change the current tax law in this particular area.

5

Two versions of this legislation have been proposed in this current Congress. The Tax Code prohibits section 501(c)(3) organizations from engaging in any political campaign activities. The law

also limits the amount of lobbying activities that these organizations can conduct. These tax rules have been in place for 25 years

and have been substantially modified during this time.

I look forward to the witnesses’ statements about the public interest served in restricting the activities of organizations receiving

charitable donations as well as the concerns of churches about this

policy.

The Oversight Subcommittee has a long tradition of reviewing

tax-exempt issues and organizations and their issues. As we evaluate the issues before us this afternoon, I look forward to continued

bipartisanship in this particular area.

Thank you, Mr. Chairman.

[The opening statement of Mr. Coyne follows:]

Opening Statement of the Hon. William J. Coyne, a Representative in

Congress from the State of Pennsylvania

Today’s hearing will provide a hearing record on the current law rules applicable

to political and lobbying activities by churches and charities. Specifically, we will

review legislation to change the current tax law rules for churches, as proposed by

Congressman Walter Jones and Congressman Crane.

The tax code prohibits section 501(c)(3) organizations from engaging in any political campaign activities. The law also limits the amount of lobbying activities these

organizations can conduct. These tax rules have been in place for over twenty five

years and have been substantially modified during this time. I look forward to the

witnesses’ statements about the public policy served in restricting the activities of

organizations receiving charitable donations, as well as the concerns of churches in

speaking freely from the pulpit.

The Oversight Subcommittee has a long tradition of reviewing the tax-exempt organization issues. As we evaluate the issues before us this afternoon, I look forward

to continued bipartisanship in this area. Thank you.

very much. Mr. Crane, would you like to make a statement?

Chairman HOUGHTON. All right. I, too, Mr. Coyne. Thank you

f Mr. CRANE. I simply want to express my appreciation to you,

Mr. Chairman, for permitting me, not a Member of this Subcommittee, to be here and to participate in this very important

hearing.

I have introduced legislation on this subject going back several

years, and it is something that we continue to push toward answering some of the questions, but this kind of a hearing is vitally important in doing that. So I just want to congratulate you for what

you have done, and I look forward to today’s hearing.

Chairman HOUGHTON. Thanks very much.

Mr. Weller, do you have a comment? No. Mr. Lewis?

Mr. LEWIS. Thank you, Mr. Chairman. I just want to thank you

for holding this hearing. I look forward to hearing from the witnesses.

Chairman HOUGHTON. Thanks, Mr. Lewis. Ms. Dunn, would

you like to make an opening statement? All right, gentlemen, you

are on.

Mr. Miller, will you lead off?

6

STATEMENT OF STEVEN T. MILLER, DIRECTOR, EXEMPT

ORGANIZATIONS, INTERNAL REVENUE SERVICE

Mr. MILLER. Thank you, Mr. Chairman.

In the time available, I will concentrate on the requirements for

tax exemption as the rules apply to churches. I will also touch on

our experience in administering this area.

I request that my written testimony be made a part of the record

of this hearing.

Section 501(c)(3) of the Internal Revenue Code provides for tax

exemption of certain organizations. It does not specifically mention

churches. However, they qualify as entities organized and operated

for religious purposes. While there are special rules applicable to

churches under the Internal Revenue Code, the lobbying and campaign intervention rules apply not only to churches but to all section 501(c)(3) organizations.

Let me spend a moment on lobbying restrictions. No substantial

part of a section 501(c)(3) organization’s activities can be carrying

on propaganda or otherwise attempting to influence legislation.

Lobbying includes direct communications to Members of legislatures, as well as indirect communications that are made through

the general public.

Section 501(c)(3) restricts lobbying. It does not prohibit it.

Churches are subject to the restriction although, unlike other section 501(c)(3) organizations, they are not eligible to file the election

under section 501 (h). Section 501 (h) allows an organization to

have its lobbying activity measured by expenditures.

Since some lobbying is acceptable under the law, it is fair to say

that the IRS has not often identified situations in which information shows or even suggests that a church is engaged in sufficient

lobbying to justify revocation of its status.

Let me move to the prohibition on political activity. Section

501(c)(3) does not prohibit all activity that might be described as

political within the common meaning of that term. Rather, it prohibits an exempt organization from directly or indirectly participating in or intervening in any political campaign on behalf of or

in opposition to any candidate for public office.

On the other hand, unlike lobbying, when the section 501(c)(3)

limit on political campaign intervention applies, it is absolute. Like

any other section 501(c)(3) organization, a church not only jeopardizes its tax-exempt status for participating in a political campaign,

it also becomes subject to excise tax under section 4955 on its political expenditures. This excise tax may be imposed in addition to or

in lieu of revocation.

I would like to touch on one rule applicable only to churches.

Under section 7611, the IRS is required to follow special procedures, both before and during the audit of an organization claiming

to be a church.

First and foremost, the IRS may begin a church tax inquiry, the

initial step of the church audit, only when a high-level official has

a reasonable belief that the church may not be tax exempt or may

have other certain liabilities under the Code. There are various

other protections under section 7611 that are outlined in my written testimony.

7

Let me take a moment to highlight our outreach efforts in this

area, because we take the approach that the most efficient means

of assuring compliance is to educate the taxpayer.

We have made the church community aware of the tax law rules.

We have disseminated to the church community and to the public

a publication containing a discussion of the rules in this area. This

publication has been widely available and widely discussed since it

was issued in July 1994. We also remind churches and all other

section 501(c)(3) organizations each election cycle of their responsibilities in this area through news releases. Finally, we share information with leaders of the church community and persons who

provide tax advice to churches through various outreach opportunities.

In the coming weeks, we will release a revised version of the

above-referenced publication entitled Tax Guide for Churches and

Other Religious Organizations. We will have an expanded discussion of the prohibition on political campaign activity. We are also

considering what other guidance may be necessary in the area.

Moving on to a discussion of our experience in Administration,

I would first note that we fully recognize the sensitive nature of the

area. Our primary purpose here is to influence individuals and organizations to voluntarily comply with the law. We try to enhance

voluntary compliance in as unobtrusive a manner as possible, recognizing that the less entanglement between the religious community and the Internal Revenue Service the better. Such an approach is in the best interest of both parties and is in keeping with

the competing constitutional interests in this area.

Our experience in this area indicates that the issue of political

intervention occurs infrequently in our examination program and

does not often justify the revocation of a church’s tax-exempt status.

From time to time, we find well-meaning individuals who act out

of faith but not in conformance with the law. When we come upon

this situation, we normally prefer to pursue the excise tax, if available, and correction rather than revocation. Correction means that

the organization attempts, to the extent possible, to undo the error

and creates and adheres to procedural safeguards to prevent the

recurrence.

However, in rare and appropriate circumstances, the IRS has

and will revoke the exempt status of a church or other organization

for political activities. This is a challenging area for us to administer, made even more so because of issues specific to churches.

The Joint Committee on Taxation staff has commented upon the

church tax procedures under section 7611 by stating that, while

they provide important safeguards to the church community, they

may result in unintended consequences. For example, in the church

area we are most often left to use third-party referrals of information about potential noncompliance. In addition, there is a lack of

information available to the IRS and the public in this area.

Churches do not need to apply for a determination letter from the

Internal Revenue Service, and they don’t have to file annual reports either.

Other issues in administering the political campaign intervention

prohibition exist not just for churches but for all section 501(c)(3)

8

organizations. These include determining whether the action of an

individual may be attributed to the organization and whether a

given pronouncement constitutes prohibited political campaign

intervention.

Finally, the section 4955 excise tax on political activities available to us in lieu of revocation may not be effective in certain circumstances. That is because the tax is based on expenditures, and

certain political activities are not readily measurable in that context.

Mr. CRANE. Mr. Chairman, could Mr. Miller use that mike to

the right of him? Obviously, that one he has is not functioning

properly.

Chairman HOUGHTON. It cuts in and out. Yes. Try that. Yes.

Mr. MILLER. All right.

Mr. CRANE. Thank you.

Mr. MILLER. A little better. Although timing is everything, I

would just want to——

Chairman HOUGHTON. You take as much time as you want

now.

Mr. MILLER. As I said, for the most part, churches are faced

with the same requirements for exemption as other section

501(c)(3) organizations, including the prohibition on campaign

intervention. They are, however, afforded additional protections

under section 7611 and have fewer public reporting requirements.

It is a challenging area for us to administer.

Thank you, and I am available for comments.

[The prepared statement of Mr. Miller follows:]

Statement of Steven T. Miller, Director, Exemption Organizations,

Internal Revenue Service

Thank you Mr. Chairman, for the opportunity to provide this Subcommittee with

general background on the requirements for tax exemption, particularly as they relate to the prohibition on political activities. I will also discuss how these rules

apply to churches, the Internal Revenue Service’s experience with these issues, and

the numerous challenges we confront in administering this law.

General Requirements for Tax Exemption

Section 501(c)(3) of the Internal Revenue Code provides for the exemption from

federal income taxation of organizations organized and operated exclusively for religious, charitable, scientific, educational, and certain other purposes. Section

501(c)(3) imposes a number of conditions to exempt status:

• No part of the organization’s net earnings may inure to the benefit of any

private shareholder or individual.

• No substantial part of the organization’s activities may be attempts to influence legislation (lobbying restriction).

• The organization may not intervene in any political campaign on behalf of

or in opposition to any candidate for public office (political campaign prohibition).

Section 501(c)(3) does not specifically mention churches. They qualify as entities

organized and operated for religious purposes. Thus, the above-referenced conditions

apply to churches as well as all other section 501(c)(3) entities. In addition, there

are rules specifically applicable to churches that I will outline in my testimony.

Restriction on lobbying

One condition of exemption under section 501(c)(3) is that no substantial part of

an organization’s activities can be carrying on propaganda, or otherwise attempting

to influence legislation (commonly known as lobbying). Lobbying includes direct

communications to members of a legislature, indirect communications through the

electorate or general public (‘‘grass roots’’ lobbying), and advocating adoption or reVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
9

jection of legislation on an issue, even if specific legislation is not pending. Whether

a communication on an issue constitutes lobbying depends on the facts and circumstances of the communication.

Section 501(c)(3) restricts lobbying; it does not prohibit it. Churches are subject

to the restriction, but unlike other section 501(c)(3) organizations, are not eligible

to file the election provided under section 501(h) of the Code to have lobbying measured by expenditures. Although the ‘‘no substantial part’’ test is less precise—courts

have generally rejected using a percentage test as the sole test of whether the activity is a substantial part of an organization’s activities—it is fair to say that the IRS

has not identified situations in which we received information showing, or even suggesting, that a church was engaged in lobbying as a substantial part of its activities.

Prohibition on Political Campaign Intervention

Section 501(c)(3) does not prohibit all activity that might be described as ‘‘political’’ within the common meaning of that term. Rather, it prohibits an organization

seeking to be exempt from directly or indirectlyparticipating in, or intervening in,

any political campaign on behalf of (or in opposition to) any candidate for elective

public office. Contributions to political campaign funds or public statements of position (verbal or written) made by or on behalf of the organization in favor of or in

opposition to any candidate for public office violate the prohibition against political

campaign intervention.

The section 501(c)(3) limit on political campaign intervention is absolute. Violation

of this prohibition may result in denial or revocation of tax-exempt status and the

imposition of certain excise taxes.

Section 1.501(c)(3)–1(c)(3)(iii) of the Income Tax Regulations refines the prohibition on campaign intervention by defining ‘‘candidate for public office’’ as an ‘‘individual who offers himself or herself, or is proposed by others, as a contestant for

elective public office’’. The regulation also provides that prohibited political campaign intervention includes, but is not limited to, publishing or distributing written

or printed statements or making oral statements on behalf of or in opposition to

such a candidate. Since a candidate must be a contestant for elective public office,

section 501(c)(3) only prohibits organizations from participating or intervening in

election campaigns.

It has been argued that the prohibition on campaign intervention does not apply

to churches. Courts have considered and rejected this argument. In Branch Ministries, Inc. v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), aff’g 40 F. Supp. 15 (D.D.C.

1999), the Court of Appeals upheld the IRS’s revocation of the section 501(c)(3) exempt status of the Church at Pierce Creek. The District Court had granted summary judgment to the IRS on its claim the organization violated the statutory prohibition on political campaign intervention when it placed full-page advertisements in

two newspapers. The content of the advertisement was in opposition to a candidate.

The Court of Appeals rejected the church’s claims that the revocation violated the

church’s right to free exercise of religion under the Constitution and the Religious

Freedom Restoration Act, and that it was the victim of selective prosecution.

Rules Relating to Specific Issues in the Area of Political Intervention in Campaigns

Certain activities or expenditures may or may not constitute campaign intervention. For example, certain voter education activities (including the presentation of

public forums and the publication of voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. On the other

hand, voter education activities that show a bias for one candidate over another will

constitute prohibited political campaign intervention. Two examples are described

below to better explain the rules in this area and our administration.

Voter guides

Like other section 501(c)(3) organizations, some churches undertake voter education activities by publishing voter guides. Voter guides, in general, provide information on how candidates stand on various issues. These guides may be distributed

with the stated purpose of educating voters. A careful review of the following may

help determine whether or not a church’s publication or distribution of voter guides

constitutes prohibited political campaign activity:

• Whether the guide provides information with respect to all candidates for

an office;

• Whether the guide contains editorial opinion or remarks, or otherwise indicates approval or disapproval of candidate or their records;

• Whether the guide is disseminated in close proximity to an election;

• Whether the guide covers a wide variety of issues; and

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• For a candidate questionnaire, whether the organization asks the same

neutral questions of all candidates, or indicates a bias toward the organization’s preferred responses, whether the guide is based on responses to a

questionnaire sent to all candidates, and whether the guide is made generally available to the public.

‘‘Get out the vote’’ activities

Questions are raised about the use of church assets or funds in ‘‘get out the vote’’ activities. In this regard, whether these activities violate the campaign prohibition

depends on whether a church’s activities favor or oppose a candidate for public office. Thus, the church’s financial resources, facilities, or personnel may not be used

in get out the vote activities that favor one candidate over another (as by only helping individuals get to the polls if they favor a particular candidate). Of course, this

does not mean that church members may not conduct these activities independent

of the church.

Consequences of Political Campaign Intervention

Like any other section 501(c)(3) organization, a church not only jeopardizes its tax

exempt status under section 501(c)(3) for participating in political campaign activities, it also becomes subject to an excise tax under section 4955 on its political expenditures. This excise tax may be imposed in addition to revocation, although in

certain situations it may be imposed instead of revocation. Also, the church or religious organization must correct the violation to avoid the second-tier tax under section 4955.

Section 4955 imposes an initial tax on an organization at the rate of 10 percent

of the political expenditures. It also imposes an initial tax at the rate of 2.5 percent

of the expenditures on any of the organization’s managers (jointly and severally)

who, without reasonable cause, agreed to the expenditures knowing they were political expenditures. The initial tax on management may not exceed $5,000. In any

case in which an initial tax is imposed against an organization, and the expenditures are not corrected within the period allowed by law, an additional tax equal

to 100 percent of the expenditures is imposed against the organization. In that case,

an additional tax is also imposed against any of the organization’s managers (jointly

and severally) who refused to agree to make the correction. The additional tax on

management is equal to 50 percent of the expenditures and may not exceed $10,000

with respect to any one expenditure. Correction of a political expenditure requires

the recovery of the expenditure, to the extent possible, and establishment of safeguards to prevent future political expenditures.

Rules Applicable to Churches under the Internal Revenue Code

Congress has enacted tax laws applicable to churches in recognition of their

unique status in American society and of rights guaranteed them under the First

Amendment of the Constitution of the United States. The Internal Revenue Code

includes several provisions relevant for a discussion of the treatment of churches by

the Internal Revenue Service. These provisions generally serve the purpose of preventing needless entanglement between churches and the IRS. For example, unlike

almost any other section 501(c)(3) organization, a church need not apply for recognition from the IRS to obtain tax-exempt status. Nor do churches ordinarily have to

file an annual information return (the Form 990) with the IRS. However, Congress

recognized the need for the IRS to ensure that churches follow the requirements for

tax exemption. In this regard, it enacted section 7611 of the Internal Revenue Code.

Section 7611 requires that the IRS follow several procedures when auditing an

organization claiming to be a church. First, a church tax inquiry requires the approval of a high level official of the Internal Revenue Service (the Director of Examinations for Exempt Organizations); that is, the IRS may begin a church tax inquiry

only when a high level official believes, on the basis of facts and circumstances recorded in writing, that the organization: may not qualify for tax exemption as a

church; may be carrying on an unrelated trade or business; or may otherwise be engaged in an activity subject to tax.

Under section 7611, notice to the church is required before beginning an examination, and must include the following elements: an explanation of the concerns that

give rise to the inquiry and the general subject matter of the inquiry in sufficient

detail to allow the church to understand which specific activity is at issue; a general

explanation of the Internal Revenue Code provision(s) that authorize the inquiry

and that may otherwise be involved; and a general explanation of applicable administrative and constitutional provisions involved, including the right to a conference

before examination. Other rights guaranteed under the statute and implementing

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regulations include an offer of pre-examination conference, completion of any audit

tax liabilities within two years after the date on which the notice of examination

is supplied to the church, limitations on the IRS’s ability to revoke a church’s taxexempt status, limitations on the period of assessment, limitations on additional inquiries and examinations, required coordination with IRS counsel at various stages,

and remedies for IRS violation of the procedures.

Outreach Efforts to the Church Community by the Internal Revenue Service

The IRS takes the approach that an educated taxpayer is generally a compliant

taxpayer. As a result, we have attempted to make the church community aware of

the tax law rules relating to political campaign intervention. The IRS has (1) disseminated to the church community and the public for comment, a publication (Tax

Guide For Churches and Other Religious Organizations (Draft 7/26/94)); (2) periodically reminds churches (and all section 501(c)(3) organizations) of their responsibilities in the area of political campaign intervention (see, e.g., News Release 2000– 47 (July 5, 2000)); and (3) shared information with individual church leaders and

persons who provide tax advice to churches.

In the coming weeks, we will release a revised version of the Tax Guide for

Churches and Other Religious Organizations. It will have an expanded discussion

of the prohibition on political campaign activity, including practical guidance.

Administrative Issues and Internal Revenue Service Experience in this Area of Political Campaign Activity

The IRS is appreciative of the sensitive nature of this area. Our mission and our

hope are to influence individuals to voluntarily comply with existing rules. Thus, we

try to enhance voluntary compliance in as unobtrusive a manner as possible recognizing that the less entanglement the better between the religious community and

the IRS. Such an approach is in the best interests of both parties and is in keeping

with the competing Constitutional interests in this area. Unfortunately, from time

to time, we find well-meaning individuals acting out of faith but not acting in conformance with the rules. As a result, when we find an issue in this area, we normally prefer to pursue correction rather than revocation. Correction means that the

organization attempts to undo the error, and creates and adheres to procedural safeguards to prevent a recurrence.

Our experience in this area indicates that this issue occurs infrequently in our

examinations and does not often result in revocation of tax-exempt status. However,

as indicated by the Branch Ministries case discussed above, the IRS will revoke the

exempt status of an organization for political activities in appropriate circumstances.

This is a challenging area for the IRS to administer. This is not the first time

that Congress has reviewed our activities in this area. This was the subject of congressional review in the 1980’s, and as recently as March of 2000, when the Joint

Committee on Taxation reported on our handling of tax-exempt organization matters. In Report of Investigation of Allegations Relating to Internal Revenue Service

Handling of Tax-Exempt Organization Matters (JCS–3-00), the staff looked at numerous cases, including certain church tax inquiries and examinations. The Joint

Committee staff found no credible evidence of political motivation in the manner in

which we carry out our responsibilities.

Our administration is made more challenging in part because of issues specific to

churches. For example, at page 22 of the Joint Committee report, staff commented

upon the church tax procedures:

The Joint Committee staff found that the church audit procedures provide important safeguards against the IRS engaging in unnecessary examinations of

churches. However, the procedures also have the effect of (1) making it more

difficult for the IRS to initiate an examination of a church even where there

is clear evidence of impermissible activity on the part of the church and (2)

hampering IRS efforts to educate churches with respect to actions that are not

permissible, such as what constitutes impermissible political campaign intervention.

Similarly, the lack of information available from churches (e.g., the fact that

churches do not need to apply for a determination letter and are not required to

file an annual information return) has an impact on our ability to determine compliance with requirements for tax exemption. This in turn leads us to more frequent

use of third-party referrals of information about potential non-compliance in the

church area.

Other issues in this area exist not just for churches, but also for all organizations

prohibited from participating in political activity. First, we have the issue of attribuVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
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tion. Was an individual making a pronouncement in his or her individual capacity,

or can the pronouncement be attributed to the tax-exempt organization? In the

church area, the IRS is sometimes asked to consider whether campaign advocacy

by a minister or other church official may be attributed to the church with which

he or she is associated. The prohibition on political campaign activities applies only

to section 501(c)(3) organizations, not to the activities of individuals acting in their

private capacities. Accordingly, the prohibition does not prevent a church’s minister

from being involved in a political campaign, so long as the minister does not use

the church’s financial resources, facilities, or personnel, and clearly indicates that

his or her actions or statements are his or her own, and not those of the organization.

A second difficult issue we face is whether a given pronouncement constitutes prohibited political campaign intervention. In this area specifically, the IRS is faced

with reviewing both the content and circumstances surrounding the distribution of

voter guides during worship services or on church property.

A third issue common to churches and other non-profits is that the sanction in

this area is often misdirected. Candidates, political fundraisers or other outsiders

sometimes request churches or other section 501(c)(3) organizations to make their

resources available for political purposes either because the outsider does not know

the rules or simply does not care. The sanction for such action is on the church and

its managers, not on the outsider.

Finally, the section 4955 excise tax that can be used in lieu of revocation may not

be effective in certain instances. The tax is based on expenditures. Yet there are

times when this excise tax does not correspond to the prohibited intervention. For

example, what is the expenditure related to an endorsement of a candidate during

a sermon from the pulpit?

The IRS takes all these considerations into account when it enforces or educates,

but taken together they do make the area more challenging to regulate. Thank you

for your time and I am available for any questions.

got to mention earlier that Mr. Miller is the Director of Exempt OrChairman HOUGHTON. All right. Thank you very much. I forf ganizations of the Internal Revenue Service.

I would like to introduce Mr. Hopkins, who is——

Ms. DUNN. Now yours is doing the same thing.

Chairman HOUGHTON. Is mine doing the same thing? Let me

keep trying. Is it all right now? If I scream, is that all right? Okay.

But, anyway, Mr. Hopkins is of Counsel with Polsinelli, Shalton

& Welte, Kansas City, Missouri. Mr. Hopkins, we are delighted to

have you here. Let’s see if your mike works any better than ours.

STATEMENT OF BRUCE R. HOPKINS, OF COUNSEL,

POLSINELLI, SHALTON & WELTE, KANSAS CITY, MISSOURI

Mr. HOPKINS. Well, let me try.

Thank you, Mr. Chairman, and other Members of the Subcommittee. I appreciate the opportunity to be here today.

I am a lawyer in private practice. I have been practicing in the

exempt organizations field for 33 years now. I have taught the

course in two law schools and have written some books on the subject.

Mr. CRANE. Could you swap mikes?

Mr. HOPKINS. Does that help? Apparently, it does.

I have been asked to review the history of and the current requirements for tax exemption for public charities, with particular

attention to churches. Mr. Miller has summarized the law in this

area, making the distinctions between the rules concerning lobbying and the rules concerning political campaign activities, and so

I will not repeat what he has said. Let me add some comments that

I have in connection with this matter.

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In the lobbying area, as Mr. Miller mentioned, there is a special

set of rules, section 501(h), that public charities are allowed to elect

to measure permissible lobbying. This particular election is not

available to churches and certain other religious organizations.

In addition to the tax law, of course, first amendment considerations affect this analysis, and government may not be involved in

the establishment of religion. The U.S. Supreme Court has held

that tax exemption for public charities is constitutional, even if exemption is extended to religious organizations. The Court has also

ruled, however, that a tax exemption that is only for religious organizations is not constitutionally permissible.

The Supreme Court has further held that Congress has broad

latitude in creating classifications and distinctions in tax statutes.

This principle has been applied in the tax-exempt organization’s

context.

Congress has over the years enacted exempt organization rules

uniquely beneficial only to churches and other religious organizations. Three of these are particularly notable. Mr. Miller mentioned

a couple of these.

Churches and other religious organizations can be tax exempt

without having to file an application for recognition of exemption

with the Internal Revenue Service. Churches and other religious

organizations are not required to file annual information returns

with the Internal Revenue Service. As you mentioned, churches

have been provided special rules by which audit of them is more

difficult for the IRS.

In my view, Congress has the authority under the Constitution

to permit political campaign activity by churches. I say this as a

matter of classification for income tax exemption. Put another way,

if this proposal is unconstitutional, then so, too, must be the other

tax law benefits Congress has accorded churches.

I would like to make some comments about the pending bills.

The Houses of Worship Political Speech Protection Act would introduce the standard of substantiality into the political area. This is

the same standard that is used today in the lobbying context. All

of the uncertainties as to what this word means would be imported

into the political area. Pressure would mount for the equivalent of

a section 501 (h) election in this context.

More importantly, in my view, a new approach to defining substantiality is required. Traditional definitions in terms of time or

expenditures are no longer working. How does one value a

clergyperson’s endorsement of a candidate from the pulpit or a Web

site communication? There may have to be a new definition, some

sort of a facts and circumstances test, to capture this factor of influence.

Likewise, the Bright-Line Act does not address this problem.

This is because it focuses only on expenditures. An expenditure for

a political act may be minuscule but exert enormous influence.

Also, political activities by volunteers would be disregarded.

I am also concerned about the section 4955 tax that Mr. Miller

has referenced. The two bills address the matter of income tax exemption but not the political expenditures tax. If churches only

were exempted from this tax, I believe that would amount to an

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unconstitutional sponsorship by the Federal Government of religion.

Mr. Chairman and Members of the Subcommittee, I would be

pleased to answer any questions that you may have.

[The prepared statement of Mr. Hopkins follows:]

Statement of Bruce R. Hopkins, of Counsel, Polsinelli, Shalton & Welte,

Kansas City, Missouri

Mr. Chairman and other Members of the House Subcommittee on Oversight,

thank you for the opportunity to appear before the Subcommittee today.

Attached is a description of the federal income tax rules concerning legislative and

political campaign activities by churches, other religious organizations, and public

charities (IRC § 501(c)(3) entities) in general.

I have been asked to review the history of and current requirements for tax exemption for these organizations.

As to legislative activities:

• Public charities can engage in attempts to influence legislation, without endangering tax-exempt status, as long as these efforts are not substantial.

• The term substantial remains undefined.

• There is a safe-harbor exception, which must be elected, using a mechanical

test for measuring allowable lobbying (IRC § 501(h)).

• Churches and other religious organizations may not make this election.

• There are taxes on excess legislative expenditures (IRC §§ 4911, 4912).

As to political campaign activities:

• Public charities cannot engage in political campaign activities.

• Some of these activities are considered educational and thus are permissible.

• There is a tax on political campaign expenditures (IRC § 4955).

Other points:

• The federal tax law contains several provisions creating special advantages

and benefits for churches and other religious organizations.

• Tax exemption for all public charities is constitutional, even though religious organizations are benefited.

• Tax exemption only for religious organizations is unconstitutional.

• The bills that are the subject of this hearing pass constitutional law muster, unless it is intended that one or more tax exemptions only for religious

organizations are to be created.

[The attachment is being retained in the Committee files.]

Chairman HOUGHTON. Thank you very much, Mr. Hopkins.

I am going to ask you and also Mr. Miller a question, and then

f I will turn this thing over to Mr. Coyne, and we will go on to the

other participants.

What I am really interested in is what is the practical effect of

passage of either the Jones or the Crane bills?

Mr. HOPKINS. Well, the practical impact of passage of the bill

would be basically to engraft into the area of political campaign activities the type of law that is in the law today concerning lobbying.

In other words, the limitation on a political campaign activity for

churches and other public charities today is absolute. It is not permissible. In a lobbying context, there is a standard of insubstantiality. That standard in the lobbying setting would be imported

into the political arena to allow a certain amount of political activity by churches.

Chairman HOUGHTON. Is that the practical impact or the technical impact?

Mr. HOPKINS. Well, maybe I misunderstood what you meant by

the terms. I guess maybe that is more of a technical impact.

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I suspect the practical impact would be twofold, if I understand

what you mean by the word ‘‘practical.’’ One, as we know, there are

churches engaged in political activity today, so it would legitimize

practices that are going on in any event. Second, it would probably

generate more political campaign activity by churches than we

have today.

Chairman HOUGHTON. Mr. Miller.

Mr. MILLER. I am somewhat limited in what I can say about

the pending legislation, but I would echo Mr. Hopkins—it is clear

there are instances out there of pulpit comments and things of that

nature that would seem to fall within the rules that are being discussed in the bills.

Chairman HOUGHTON. Well, but this is a hypothetical situation. It doesn’t have anything to do with what Mr. Crane or Mr.

Jones—it is just a hypothetical.

Seriously, what do you think from the standpoint of the IRS the

practical impact of this would be?

Mr. MILLER. Of the bills?

Chairman HOUGHTON. Yes.

Mr. MILLER. The only thing that I would point to in my testimony is we have outlined what our administrative impact is in the

lobbying area; and because of the rules of section 7611 and the substantiality rules, we have a very limited enforcement role in lobbying with respect to churches.

Chairman HOUGHTON. All right. Thank you. Mr. Coyne.

Mr. COYNE. Thank you, Mr. Chairman.

Mr. Miller, why is it improper to finance political campaign activities with tax-deductible charitable donations in the judgment of

the IRS?

Mr. MILLER. On that issue actually I would defer to Congress.

But there is an issue as to why you would be able to deduct something with a charitable deduction where you were not allowed otherwise to, so it would create some disparity.

Mr. COYNE. Well, are you saying that you judge it to be or you

rule it to be improper as a result of the actions of Congress? Is that

what you are saying?

Mr. MILLER. In some respects, yes. There is a line of rules in

the Tax Code and in our regulations that talks about the earmarking of donations. A donation to a charitable organization that

is used or earmarked for political purposes is not deductible under

current law.

Mr. COYNE. Basically, it is the action of Congress that you respond to. Is that it?

Mr. MILLER. It certainly is.

Mr. COYNE. How many times have you revoked the tax-exempt

status of a church for political activities?

Mr. MILLER. Let me preface my answer. Churches have a specific status under the Tax Code and a specific definition. According

to our information, we have the exempt revoked status of two

churches. We have revoked religious organizations or religious-affiliated organizations four or five times in the last 20 years.

Mr. COYNE. Last 20 years?

16

Mr. MILLER. It probably goes farther back than that, since—the

first one would be, I guess, Christian Echoes, which is a 1980 case.

So farther back than that.

Mr. COYNE. How many times has the IRS imposed excise taxes

on churches for political activities?

Mr. MILLER. I will go back and check our records on that. I am

personally aware of at least twice that we have done that.

Mr. COYNE. Current law does not require churches to apply for

tax-exempt status nor to file form(s) 990, the annual information

returns, with the IRS. The documents are required for all other

section 501(c)(3) charities and are disclosable to the public. If the

law was changed to allow churches to engage in political activities,

isn’t it correct that neither the IRS nor the public would have any

information about the church’s political activity—that is, who funded the political campaign effort and how much money was spent?

Mr. MILLER. We would have the same information that is available today, which is we do not have an exemption application from

churches, and they are not required to file annual returns.

Mr. COYNE. So you would have no information?

Mr. MILLER. We would have limited information.

Mr. COYNE. Wouldn’t allowing political activities by churches

create a large campaign finance loophole?

Mr. MILLER. I don’t know about a large loophole. It certainly

would create an additional player in the political arena.

Mr. COYNE. So it would be involving the churches and religious

institutions in the political arena even more so than they currently

are?

Mr. MILLER. Potentially.

Mr. COYNE. Thank you.

Chairman HOUGHTON. Thanks very much. Mr. Crane.

Mr. CRANE. Thank you, Mr. Chairman.

Mr. Miller, is there a statutory or regulatory definition of the

word ‘‘substantial’’ as it relates to the amount of activity a religious

organization may engage in?

Mr. MILLER. I don’t believe there is a—and Bruce can correct

me if I am wrong on this. I don’t believe there is a statutory rule

and probably not in the regulations either. There are revenue rulings, and there is some case law out there. Some of these do not

involve religious organizations. Because the substantiality test applies across the board to all section 501(c)(3) organizations, you can

look to those cases as well. There is some guidance out there.

Mr. CRANE. Well, since this term remains undefined, are religious organizations simply supposed to wait until some enforcement action is taken by the IRS to find that line?

Mr. MILLER. Again, if we are talking about lobbying and the

substantiality rules, we have not done a lot of enforcement in that

area. We do not have information that would indicate that we

should be more involved in this area.

Mr. CRANE. Well, could it be that there are so few enforcement

actions that—because churches totally refrain from political activity because they are afraid of running afoul of the IRS?

Mr. MILLER. I am not sure how to answer that one.

Again, substantiality applies only in the lobbying context, and

there is an absolute bar in the political context. So the definition

17

of substantiality would not flow over into political intervention unless your bill became law.

Mr. CRANE. What is the average cost for defending against an

IRS enforcement action in court?

Mr. MILLER. That I do not have.

Mr. CRANE. Thank you, Mr. Chairman. I yield back.

Chairman HOUGHTON. Thank you. Mr. Lewis.

Mr. LEWIS. Thank you, Mr. Chairman.

Mr. Miller, is it conceivable that, with the campaign finance reform, that if you change the law, is it conceivable that the churches

could become a conduit, that you would have individuals making

large contributions to churches and then the churches engage in

political activity? Is there some way the IRS can monitor that?

Mr. MILLER. That is, of course, a possibility. It is a possibility

now as well.

Again, I don’t believe the law that is being suggested would

change the fact that earmarking of moneys going into churches is

not deductible or should not be deductible on a charitable basis.

That is existing law, and there has been no suggestion that this

would change. Again, as I have said, clearly, if the bill is passed,

I think that you would have another player in the political arena

that doesn’t necessarily exist today, although to some extent obviously they do.

Mr. LEWIS. Let me come another way. As a rule, do you monitor

the activities of churches during the political season?

Mr. MILLER. We do monitor churches. We are limited in how we

do that by reason of section 7611 and because of the lack of information in the area because there is no annual filing. So our monitoring is mostly receipt of information from third parties who are

looking.

Mr. LEWIS. But if you have a minister speaking from the pulpit

on Sunday morning, maybe a rabbi from the synagogue or the temple, saying that he had been told by God about somebody, that

somebody should be elected, somebody should be defeated, is that

political activity?

Mr. MILLER. That would constitute political activity.

Again, most of these are based on facts and circumstances. It

would be difficult for me to find circumstances in which that

wouldn’t be found to be a political campaign intervention. But,

again, whether we would know about that would really depend on

who was in the audience.

Mr. LEWIS. Do you have the ability or the capacity as an agency

to monitor the activities of churches and other religious institutions?

Mr. MILLER. The only thing we can rely upon, again, is who

would be in that audience to report it, and that presumably would

continue under——

Mr. LEWIS. So you wait for someone to file a complaint against

the institution or against the minister or against the rabbi or whoever?

Mr. MILLER. Again, as I mentioned, obviously, we do not have

reporting from churches, and under section 7611 we cannot go out

and survey churches. We cannot do audits unless we have a reaVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 W:\DISC\80331.XXX txed01 PsN: txed01
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sonable belief that there is an exemption or other tax issue out

there. So there are some limitations.

Mr. LEWIS. Thank you, Mr. Chairman.

Chairman HOUGHTON. Let me just ask you a quick question.

Even if you did have reporting for the churches, would you still be

able to determine whether somebody got up at a pulpit and suggested that a candidate be elected?

Mr. MILLER. In all likelihood, we would not. There is a question

on the form 990 asking whether you engaged in political activities.

Even assuming that they would check that box, that would obviously not be contemporaneous with the action.

Chairman HOUGHTON. Thank you. Mr. Weller.

Mr. WELLER. Thank you, Mr. Chairman. First I want to commend you for conducting this hearing today. I also want to commend my colleagues, Mr. Jones and Mr. Crane, for their leadership

on this issue.

There are millions of Americans, because of their involvement

and their strong religious faith, for them their temple, their synagogue, their church, their mosque is their center of community.

They seek the opportunity to be involved, and they believe through

their central community that they should have the opportunity to

be more involved politically.

The question I have and I would like to direct to Mr. Miller is,

just try and get a little more specific here and follow up on some

of the questioning that the Chair and others have asked here. Mr.

Miller, is the IRS—are you proactive in communicating with

churches and other religious organizations regarding political activity?

Mr. MILLER. We have tried, Congressman, and we will continue

to try. I think we could do a better job.

One thing that we are doing in the coming weeks, we will reissue

our church publication with a little more practical guidance in this

particular area, and we will do additional outreach, I think.

Mr. WELLER. Do you work with any third party or private

groups to communicate limitations on political involvement in

churches or religious organizations?

Mr. MILLER. We certainly do outreach to whoever comes to us,

and we do have a network of individuals from the religious community that we talk to.

One person on our advisory Committee is, in fact, a representative of the religious community. We do have an outside advisory

Committee that speaks to us, and we bounce things off of and——

Mr. WELLER. Who is that?

Mr. MILLER. That is Deirdre Dessingue of the Catholic Conference.

Mr. WELLER. Let me ask some specific examples of activity that

may or may not have occurred at churches and temples and synagogues and mosques, other religious institutions. But under current

law can a church or a synagogue or a temple or a mosque, can they

conduct a voter registration drive sponsored by the institution or

on the institution’s property?

Mr. MILLER. Yes. The short answer is, yes, provided they do not

bias their registration activities toward one candidate over another.

There is no prohibition.

19

Mr. WELLER. And can they offer a candidate debates or forums,

invite candidates to come in and present themselves?

Mr. MILLER. The same general rules would apply.

Mr. WELLER. And what about paid political advertising in a

church bulletin or a publication at the mosque or temple?

Mr. MILLER. There is no prohibition, provided that it is done on

a fair market basis and that it is made available to whoever wants

to use that space. So it has to be equally available to the candidate

base.

Mr. WELLER. And can the minister say the following from the

pulpit and not be in violation of the tax status, that candidate X

is pro-life or candidate Y is pro-choice?

Mr. MILLER. That becomes more problematic, Congressman.

The pastor, the minister, the rabbi can speak to issues of the day,

but to the extent they start tying it to particular candidates and

to a particular election, it begins to look more and more like either

opposition to a particular candidate or favoring a particular candidate.

Mr. WELLER. And would the Crane and Jones legislation

allow—clarify the law to allow for that type of statement?

Mr. MILLER. I believe so. But Bruce might be able to answer

that better than I.

Mr. WELLER. Mr. Hopkins, can you answer that?

Mr. HOPKINS. Most of the examples that you provided would

not be political activity in the first place, as Steve indicated, so the

legislation would not be needed. But if it were to go beyond that,

say statements made by a Member of the clergy from the pulpit

and they were deemed to be political statements, which would be

prohibited under current law, the two bills, within certain parameters, would allow that kind of activity to occur without the church

losing its exemption.

Mr. WELLER. So just to follow up on that, say you have a candidate who is a guest speaker, was in a church speaking from the

pulpit, concludes his or her remarks, and the minister walks up,

puts his or her arm around that particular candidate and says, this

is the right candidate. I urge you to support this candidate. That

would be—is that allowable under current law?

Mr. HOPKINS. No, that would not be allowable under current

law. That would clearly be political campaign activity. It would be

protected, however, under the two bills that are the specific subject

of the hearing.

But as I said in my opening statement, the problem is in terms

of computing how you stay within the boundaries, either of the 5

percent rule under one bill or the insubstantiality test under the

other bill. That is, what monetary value do you assign to that kind

of activity?

Mr. WELLER. Just a last question. You know, also on Election

Day sometimes it is alleged that churches or synagogues, temples

or mosques may use what we call the church bus to transport voters to the polls. Is that allowable under current law?

Mr. MILLER. That is. It is allowable, again, with the restriction

that they cannot bias toward one candidate versus another, but get

out the vote is a permissible activity of churches.

20

Mr. WELLER. Okay. Thank you, Mr. Chairman. I see my time

is expired. Thank you.

Chairman HOUGHTON. Thank you, Mr. Weller. Mrs. Thurman?

Mrs. THURMAN. Thank you, Mr. Chairman.

In the same idea, what about handing out voting guides? Is that

considered to be a political activity, and—either in the church or

is it different if it is outside of the church?

Mr. MILLER. The voter guide issue is one that we are presented

with often. There is nothing per se wrong with voter’s guides if

they are done in a way that includes all candidates in a fair and

impartial manner, and, includes a wide array of issues.

Mrs. THURMAN. One other question, and I—or a couple of other

questions. It is my understanding that today under the churches

and being organized under a section 501(c)(3), they cannot do any

kind of political issue campaigning. Is that correct?

Mr. MILLER. They cannot do specific advocacy of a particular

candidate or advocating the defeat of another candidate.

Mrs. THURMAN. Okay. Is there—and it is my understanding

there is a way for them, in fact, to be involved in political campaigns by setting up a section 501(c)(4), is that correct?

Mr. MILLER. They can have affiliated organizations, provided

that the resources of the church don’t find their way there and are

not used for improper purposes. We do see the ability—and perhaps, Bruce, you want to speak to this as well—of an organization

creating a section 501(c)(4). Again, any section 501(c)(3) organization, could create a section 501(c)(4) organization. For that matter,

a political action Committee could be attached to that section

501(c)(4) organization.

Mrs. THURMAN. So they are not then being—I mean, they have

an ability to do that if they choose. Are their churches, synagogues,

mosques, others that do that today?

Mr. MILLER. I am not familiar with any, but I am not sure I

would be.

Mrs. THURMAN. Mr. Hopkins.

Mr. HOPKINS. Well, first of all, let me say, as to your first question, the problem—and Steve indicated this—is not just a matter

of setting up a related entity. It is a question of getting it funded,

and that often is a problem. Because, as he said, the church resources can’t flow over to the section 501(c)(4). So the section

501(c)(4) has got to find independent funding, and often that is difficult because contributions to them are not deductible. But, aside

from that, it is not, in my experience, terribly common for a church

to have a related section 501(c)(4). It is far more common for other

types of religious organizations to do that. I have seen churches do

it, but, in my experience, it is quite uncommon and in large part

because of this funding aspect.

Mrs. THURMAN. I guess my point is that there is a legal way

for them to be involved in the political activities if they choose to

do that.

Aside from their—you know, issue that you bring up as funding,

if a church and its parishioners wanted to be involved and used

that church and/or—for the ability to persuade their congregation,

they have an ability to do that?

21

Mr. HOPKINS. That is true, although I would point out that

while social welfare organizations—these are section 501(c)(4)s— are not limited as to lobbying, they are limited as to political campaign activity. They can only expend an insubstantial part of their

funding on political campaign activities. So that outlet is of limited

utility in the political campaign activity context.

Mrs. THURMAN. But you bring up a good point, because that

means that there is a lot of these organizations out there other

than just in the religious area that would have the same restrictions unless they did some very similar things that—and I don’t

know if in this piece of legislation are those also being considered,

or is it just religious organizations? I mean, do we say to one, you

have a freedom, but the others you don’t unless you abide by the

rules that are already set in place?

Mr. HOPKINS. Well, it is very common to have the section

501(c)(3), section 501(c)(4) in-tandem relationship across the public

charities spectrum, very common. I confess to having set those up

many times over the course of my practice.

Mrs. THURMAN. But didn’t you just say they were limited in

what they could do?

Mr. HOPKINS. As far as political activity.

Mrs. THURMAN. Even the section 501(c)(4)—— Mr. HOPKINS. But they are unlimited as to lobbying activity.

Mr. COYNE. Would the gentlewoman yield?

Mrs. THURMAN. I would yield to Mr. Coyne.

Mr. COYNE. Just to follow up on Mrs. Thurman’s question as

about the section 501(c)(4) and section 501(c)(3), it is your experience that people are willing to contribute to the church under the

section 501(c)(3), but they are not willing—not very willing, anyway, to take up the section 501(c)(4) option? Is that it? Is that your

experience?

Mr. HOPKINS. Are you speaking to me?

Mr. COYNE. Yes.

Mr. HOPKINS. Yes, it is. Donors are reluctant to donate if they

do not receive a charitable contribution deduction. It does occur,

but it is uncommon.

Mr. COYNE. Thank you.

Chairman HOUGHTON. Mr. Foley.

Mr. FOLEY. Thank you very much, Mr. Chairman; and let me

join Mr. Weller in commending our colleagues, Mr. Jones and Mr.

Crane, and such stalwarts as Lee Sheldon for their leadership in

this issue. This has been a very complicated issue, and I think one

that desperately needs clarity.

It is interesting, in the schools, you can’t have a Bible study, but

you can have any number of other groups. In the churches, you can

invite a candidate. A preacher may be able to invoke that that particular person, be it the President of the United States, is a phenomenal leader and deserves to return to office. Yet a small church

who may not be able to accord the arrival or the visit of a President

has a small-town local elected official, and somehow they are in

jeopardy of losing tax status or, in fact, could be crippled, if you

will, by the IRS.

Mr. Miller, you suggested, which is interesting, that this was a

recent area that the Christian Coalition found themselves in on

22

voter’s guides. And the voter’s guides you suggested would be okay

if they provide a wide-array discussion. So, if you could, could you

define for me what a wide array would be considered? Is it 10

issues, 20 issues, five candidates?

Mr. MILLER. Mr. Foley, I apologize, but we are in litigation with

the Christian Coalition over that very issue, and I don’t think I am

authorized to speak in great detail on that one.

Mr. FOLEY. Okay. Hence the confusion. Okay.

The other question I have, while I enjoy both of these bills and

I think they would bring some clarity, my concern always is, when

government gets more meddlesome and more involved by staking

out percentages or other issues, will the IRS need the churches to

maintain more detailed records such as direct expenses, logs or

tapes of political campaigns, time sheets, overhead and administrative allocation? Would these bills actually invite more government

and IRS interference?

Mr. MILLER. Once again, I would point to our experience in the

lobbying area. Again, because of section 7611, our involvement

would be limited because we need a reasonable belief that exemption is an issue. And if you have the typical example of a pulpit

pronouncement, that generally might not be sufficient to initiate a

church inquiry under section 7611. If we were auditing the organization, then, yes, it is conceivable that we would require recordkeeping, as we would with other section 501(c)(3) organizations.

Mr. FOLEY. I guess the question always for me has been the

churches, synagogues have long been the mainstay of American society, and many of the works that they pronounce from the pulpits

are works that government is involved in—feeding and clothing the

poor, cleaning up inner-city neighborhoods, dealing with spousal

problems and spousal abuse. It seems to me if the minister or rabbi

wants to continue and make that a cause for their church to expand those opportunities, engaged in a dialog with their parishioners whose parishioners attend voluntarily, if they were to advocate for someone who, in fact, espoused those same virtues or were

at least on the same thought pattern, it seems that it restricts the

churches from a continuation of their good work, and I guess I

don’t understand where the politics comes in.

If—Dr. Kennedy is here from Fort Lauderdale—and I am delighted he is here—he will preach about the things necessary to

bring a community together, to bring it whole and holistic, if you

will. Yet if he treads slightly over to suggesting that some of those

individuals who may in fact bring those changes to government,

then he could be in serious jeopardy and conflict with the IRS,

which seems to me a difficult standard.

Mr. MILLER. I guess I would respond in a couple of fashions.

First, I think that there is nothing in the statute that prevents

the clergy from speaking to the issues of the day. It is when they

tie those issues to a particular election campaign that there is even

an issue.

As I mentioned in our testimony, our experience is where there

has been the kind of foot fault that you are speaking of, we have

talked to the church to ensure that they understand what the rules

are. We have not revoked generally. We have spoken to them about

what the rules are and gotten their agreement that they underVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 W:\DISC\80331.XXX txed01 PsN: txed01
23

stand the rules and will establish some procedures as to how they

will operate so that we don’t have to come back and intervene

again.

Mr. FOLEY. Thank you. Thank you, Mr. Chairman.

Chairman HOUGHTON. Thank you very much. Unless there are

any other questions, we appreciate very much your being here. You

have helped us a great deal.

Now we will move on to the second panel. What I would like to

do is to call the second panel, Mr. Colby May, Senior Counsel for

the American Center for Law and Justice in Alexandria, Virginia;

the Reverend Dr. C. Welton Gaddy, Ph.D., Executive Director of

the Interfaith Alliance; the Honorable Reverend Walter Fauntroy— Walter, great to have you back here—Pastor of the Bethel Baptist

Church; the Reverend Barry Lynn, Executive Director, Americans

United for Separation of Church and State; Brenda Girton-Mitchell, Associate General Secretary for Public Policy with the National

Council of Churches (NCC).

And Mr. Foley is going to introduce Dr. Kennedy.

Mr. FOLEY. Thank you very much, Mr. Chairman. I want to

thank you again for holding the hearing.

However opinions may vary, this issue is critically important to

the countless religious institutions across our country, and I appreciate the Chairman’s decision to allow us to consider it.

I also want to—I appreciate all the witnesses for being here

today. In particular, I would like to recognize among our panelists

today Dr. James Kennedy of my home State of Florida. Dr. Kennedy’s Coral Ridge Presbyterian Church is located in Fort Lauderdale, Florida, near my district and that of the district of our colleague on the Committee on Ways and Means, Clay Shaw, and has

a Membership of nearly 10,000 Members. Moreover, his Coral

Ridge ministries is a vibrant television, radio, and print outreach

ministry that reaches millions both here and abroad.

I know the Chairman has an abundance of people who all wanted to testify here, so I am pleased that Dr. Kennedy was able to

join the panel. We need to look at this issue clearly, and again I

applaud and welcome Dr. Kennedy to our hearing today.

Chairman HOUGHTON. Thanks very much, Mr. Foley.

Well, ladies and gentlemen, I think we should proceed. Mr. May,

will you take the first cut at this?

STATEMENT OF COLBY M. MAY, DIRECTOR, AMERICAN

CENTER FOR LAW & JUSTICE, ALEXANDRIA, VIRGINIA

Mr. MAY. Thank you, Mr. Chairman. How is this mike working?

Is it okay?

Mr. Chairman and Members of the Subcommittee, thank you for

extending to me the invitation to be here today. I am and was

Legal Counsel for the Church at Pierce Creek in Binghamton, New

York, which in 1992 had its exemption revoked for a single violation of this portion of the Tax Code.

Until 1954, all houses of worship were afforded the full and clear

opportunity to act and speak as their conscience and leadership

may direct, even in the political area. Today, houses of worship do

not, however, enjoy that freedom because of the Johnson amendment which was inserted into the Tax Code in 1954 without a deVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 W:\DISC\80331.XXX txed01 PsN: txed01
24

bate or a hearing. Then-Senator Johnson was angry because two

Texas charitable organizations had taken a position contrary to

him during his then-current primary bid.

The law under the Johnson amendment now provides that

churches and exempt organizations may engage in an insubstantial

amount of lobbying activities, as you have heard from the IRS

panel, but they are banned from doing anything that may be regarded as participating or intervening in a political campaign. Now

the law is so intrusive and incomprehensible that the IRS has actually taken the position—and I was curious to note that they did not

mention this during their testimony, but they have taken the position that there is coded language that may be used which would

violate the political prohibition.

In its publication, Election Year Issues, the IRS explains that the

concerns that an exempt organization may support or oppose a particular candidate without specifically naming the candidate by

using code words to substitute for the candidate’s name and its

message—code words such as conservative or liberal, pro-life or

pro-choice or anti-choice, or even Republican or Democrat.

Now, making matters worse, the IRS doesn’t know whether the

intent behind the message matters. Did the organization intend to

actually endorse or not?

Adding further inscrutability, the IRS has also said the same

message can be both permissible for an exempt organization to

make if it is an educational or religious message, but it may nevertheless violate the political intervention ban.

Now, what a Catch-22. Code language violates the ban, but

maybe it doesn’t. Intent matters, but it doesn’t. And the same message is okay, but it isn’t.

Now, those opposing the bill have insisted that replacing the absolute ban on political intervention with the no substantial part

test currently used in the lobbying context would create a loophole

in the Nation’s campaign finance system. Such an assertion, however, is unfounded. Under the new bipartisan Campaign Finance

Reform Act of 2002 which amends the Nation’s Federal election

campaign laws, all corporations, and including tax-exempt nonprofit corporations, are barred from making hard money contributions or any direct or indirect disbursements for electioneering communications.

In the Act, the phrase ‘‘electioneering communications’’ means

any communication by means of any broadcast, cable or satellite

communication, newspaper or magazine, outdoor advertising facility, mass mailing, telephone banks to the general public or any

other form of general public policy advertising. These restrictions

apply right now and will continue to apply regardless of any

changes that you may make to the Tax Code with passage of either

of the bills that are before you today.

Since the beginning of the Tax Code, churches and houses of worship have been exempt from income taxes because they provide

services and promote the general welfare, saving those costs to the

government. That fundamental relationship will not change if you

abandon the absolute political intervention ban and replace it with

a no substantial part test as you currently have in the lobbying

area.

25

The passage of H.R. 2357, for example, the House of Worship Political Free Speech Act, will not require houses of worship to affirmatively do anything or fundamentally change their functions.

Houses of worship will continue to serve the basic needs of their

congregations and their local communities, preserving the historic

balance between church and State and fulfilling the purpose for tax

exemption, even if they incidentally or occasionally speak out concerning candidates and issues.

Now, you have heard also from the IRS panel that they believe

it is constitutional because there isn’t a great disparity in its application between groups of exempt organizations.

I would just note that in the 1983 Supreme Court decision of

Reagan versus Taxation With Representation, the courts upheld

Congress’s constitutional powers to treat different speakers differently in the context of the Tax Code. In the Reagan case, the

lobbying limits for exempt organizations are upheld against a constitutional challenge as to the lobbying limits, even though there

were different standards for different types of exempt organizations.

Now, I conclude my introductory remarks by simply noting that,

whatever this standard is, it certainly isn’t applied in a very consistent or even-handed manner. I hold up for the Subcommittee’s

consideration a recent front page from the Montgomery Advertiser

in Montgomery, Alabama, noting that a Democratic senatorial candidate has put on his staff a clergy coordinator for the sole and exclusive purpose to make sure he gets around to all the churches in

the area to receive the appropriate endorsements.

Now, Members of the Subcommittee, I think that is okay. I

frankly believe it should be appropriate for churches to be able to

take a stand. I believe when Reverend Walter Fauntroy speaks, he

will also speak to that issue from his life’s experience in this matter.

I end with the irony that if this were 1953, we would not need

this hearing, because churches were able to do this without concern

or fear that the Federal Government was going to come and revoke

their tax exemption. Can you imagine if you are the pastor of a

church where your whole mission is to serve the needy, feed the

hungry, and take care of the widows and children? Well, if you

think there is any ambiguity and confusion in this area, I don’t believe for 1 minute you would speak out on an issue that you may

otherwise believe is important for your congregation to hear about.

Why? Because your real primary mission will be shut down by the

IRS, because they do not know exactly what it means to violate the

absolute ban on political speech. They will take you out of business.

Take it from me. I represented the Church at Pierce Creek, and

they lost their tax exemption.

If there are any questions, I would be glad to talk about them

later.

Chairman HOUGHTON. Thanks very much, Mr. May.

[The prepared statement of Mr. May follows:]

Statement of Colby M. May, Director, American Center for Law & Justice,

Alexandria, Virginia

Mr. Chairman and members of the Subcommittee on Oversight, thank you for extending the invitation to appear before the Subcommittee to testify in support of

26

H.R. 2357, the ‘‘Houses of Worship Political Speech Protection Act,’’ a measure designed to advance free speech and to curb the unbridled discretion of the IRS.

I respectfully request that the entirety of my prepared statement be made a part

of the record of today’s hearing. The following is an overview of my testimony:

I. OVERVIEW

First, replacing the absolute ban on political intervention with the ‘‘no substantial part of the activities’’ test currently used in the lobbying context

would not create a loophole in the nation’s campaign finance system.

Some critics contend that HR 2357 would open a loophole in the nation’s campaign finance system. Such criticism, however, is unfounded since all corporations,

including tax-exempt nonprofit corporations, are barred from making ‘‘hard money’’

contributions, or any direct or indirect disbursements for ‘‘electioneering communications’’ under the new Bipartisan Campaign Finance Reform Act of 2002, which

amends the Federal Election Campaign Act, 2 U.S.C. § 431, et seq. The phrase ‘‘electioneering communications’’ boils down to a communication by ‘‘means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising

facility, mass mailing, or telephone bank to the general public, or any other form

of general public political advertising.’’ BCFRA §§ 101(a); 102(b); FECA §§ 431(22);

441b(b)(2). These restrictions apply right now, and will continue to apply regardless

of any changes to the tax code which may be made by the passage of the ‘‘Houses

of Worship Political Speech Protection Act.’’

Second, because there is no clarity on what is a violation of the political

intervention ban, having an absolute, one-strike-your-out ban is inherently

unjust and unworkable.

The IRS has taken the position that ‘‘coded language’’ violates the political prohibition. TAM 9117001. In the publication ‘‘Election Year Issues,’’ it explains that

‘‘[t]he concern is that [an exempt] organization may support or oppose a particular

candidate without specifically naming the candidate by using code words to substitute for the candidates name in its message, such as ‘‘conservative,’’ ‘‘liberal,’’

‘‘pro-life,’’ ‘‘pro-choice,’’ ‘‘anti-choice,’’ ‘‘Republican,’’ or ‘‘Democrat,’’ etc. . . .’’ Exempt

Organizations Continuing Education Technical Instruction Program for FY 2002 at

345 (‘‘2002 CETIP’’). In a footnote following the text, the IRS notes that it is the

‘‘intent’’ of the party making the communication which will determine whether these

‘‘coded words’’ are to be treated as violations of the political campaign intervention

ban:

‘‘[a] finding of political campaign intervention from the use of coded words is

consistent with the word ‘‘candidate’’—the words are not tantamount to advocating support for or opposition to an entire political party, such as ‘‘Republican,’’ or a vague and unidentifiable group of candidates, such as ‘‘conservative’’

because the sender of the message does not intend the recipient to interpret

them that way. Coded words, in this context, are used with the intent of conjuring favorable or unfavorable images—they have pejorative or commendatory

connotations. [So,] the voter in Vermont, hearing an exhortation regarding ‘‘liberal’’ candidates, may not know who fits that label in Kansas, but presumably

he knows who stands for what in Vermont, which is why the coded word is used

in the first place.’’ id. at 345, n. 10 (underlining added).

As if just dealing with the uncertainty of losing one’s tax exemption because ‘‘code

words’’ were used wasn’t bad enough, the problem is compounded because the IRS

here says ‘‘intent’’ is determinative. That position, however, directly contradicts previous statements by the IRS that ‘‘intent’’ or ‘‘purpose’’ is irrelevant in determining

whether the political campaign ban has been violated. In its 1993 version of ‘‘Election Year Issues’’ the IRS stated ‘‘the motivation of an organization is irrelevant

when determining whether the political campaign prohibition has been violated.’’

1993 CETIP at 414–15. Then, as if this inconsistency over ‘‘intent’’ was not enough

confusion on the matter, in its 2002 version the IRS stated:

‘‘Therefore, the resolution of the ‘bad motive’ issue depends upon the way the

activity is conducted (the facts and circumstances) [—intent doesn’t matter—]

and upon any [sic] inquiry into the state of mind of the organization [—intent

matters].’’

2002 CETIP at 351. The only thing that is clear is that the IRS wants the unrestricted discretion to decide it either way. Because a single violation of the political

27

(1)The courts have repeatedly held that when a regulatory agency has conflicting interpretations or applications of its rules and regulations, due process is violated because no clear or fair

notice of what is required for compliance has been given. Satellite Broadcasting Co., Inc. v. FCC, 262 U.S. App. D.C. 274, 824 F.2d 1 (D.C. Cir. 1987); General Elec. Co. v. EPA, 311 U.S. App.

D.C. 360, 53 F.3d 1324, 1327 (D.C. Cir. 1995); United States v. Chrysler Corp., 332 U.S. App.

D.C. 444, 158 F.3d 1350, 1354–57 (D.C. Cir. 1998) (holding that agency failed to provide fair

notice of specific requirements of compliance and therefore could not move to enforce its regulations); Rollins Envtl. Svcs. (NJ) Inc. v. EPA, 290 U.S. App. D.C. 331, 937 F.2d 649, 653 (D.C.

Cir. 1991) (rescinding fine assessed by EPA because regulation was ambiguous); Gates & Fox

Co., Inc. v. OSHRC, 252 U.S. App. D.C. 332, 790 F.2d 154, 156 (D.C. Cir. 1986) (holding that

agency failure to give fair notice of its interpretation of its regulations precluded enforcement);

Trinity Broadcasting of Florida, Inc., et al. v. FCC, 211 F3d 618, 2000 U.S. App. LEXIS 8918

(D.C. Cir. 2000) (same).

intervention ban requires revocation of exemption, due process and fairness require

replacement of the absolute ban with the ‘‘no substantial part’’ standard.(1)

Third, since the beginning of the tax code churches and houses of worship

have been exempt from income taxes because they provide services and

promote the general welfare, saving the government the costs of having to

do so. That fundamental relationship will not be changed by abandoning

the absolute political intervention ban and replacing it with the ‘‘no substantial part’’ test.

Following passage of the Sixteenth Amendment allowing the federal government

to directly tax personal income, churches and houses of worship have been exempt

from income taxes. Tariff Act of 1913. Congress has always recognized that they are

tax-exempt because ‘‘the government is compensated for the loss of revenue by its

relief from financial burden which would otherwise have to be met by appropriations

from public funds, and by the benefits resulting from the promotion of the general

welfare.’’ The occasional or incidental, intentional or unintentional, participation by

a church, synagogue or mosque in activities that may be regarded as political campaign involvement will not change this relationship. Passage of HR 2357 will not

require houses of worship to affirmatively do anything, or fundamentally change

their functions. Houses of worship will continue to serve the basic needs of their

congregations and their local communities, preserving the historic balance between

church and state, and fulfilling the purpose for tax-exemption.

Fourth, given the vague and contradictory positions of the IRS that the

same activity can be both permissible for an exempt organization and still

violate the political intervention ban, modification of the absolute ban is

necessary.

The ‘‘Houses of Worship Political Speech Protection Act’’ will both alleviate and

obviate the confusion and fear surrounding the requirements for compliance with

the political intervention ban. In ‘‘Election Year Issues,’’ the tome relied upon by

most practitioners in this area as an indicator of the IRS’s approach to political campaign activities by exempt organizations, the IRS has taken the view that educational or religious activities which otherwise qualify as exempt activities can nevertheless constitute prohibited political activity:

‘‘The most common question that arises in determining whether an IRC

501(c)(3) organization has violated the political campaign intervention prohibition is whether the activities constitute political intervention or whether they

are educational [or religious], purposes for which an IRC 501(c)(3) organization

may be formed . . . Sometimes, however, the answer is that the activity is

both—it is educational [or religious], but it also constitutes intervention in a political campaign.’’

2002 CETIP at 349. In a 1989 ruling the Service stated that ‘‘[e]ducating the public is not inherently inconsistent with the activity of impermissibly intervening in

a political campaign.’’ TAM 8936002. Then in a 1999 Tax Advice Memorandum,

199907021, the IRS went on to say ‘‘[e]ven if the organization’s advocacy is educational, the organization must still meet all other requirements for exemption. . .’’.

In short, the IRS says you can do it, but you can’t. The ‘‘Houses of Worship Political

Speech Protection Act’’ will alleviate the deep chill caused by such IRS double speak

since whatever the IRS standard is, a one time step over the line would not result

in revocation.

Fifth, modifying the political intervention ban applicable to houses of worship to conform with the ‘‘no substantial part’’ test currently applicable for

lobbying activities passes constitutional muster.

28

(2)The concern over entanglement is also why churches and houses of worship, pursuant to

IRC 6033(a)(2), need not file annual informational tax returns (IRS Form 990), while all other

exempt organizations must. (3)Section 501(c)(3) of the Internal Revenue Code has been interpreted by courts to prevent

even a single activity which might be regarded as Aparticipating in, or intervening in@ a political campaign on behalf of or in opposition to a candidate for public office. Association of the

Bar of the City of New York v. Commissioner, 858 F.2d 876 (2nd Cir, 1988); Branch Ministries

v. Rossotti, 40 F. Supp. 2d 15 (D.D.C. 1999); aff’d, 211 F.3d 1137 (D.C. Cir. 2000).

In analyzing the constitutionality of a Congressional enactment in the Establishment Clause area, the courts continue to use the three part test articulated in

Lemon v. Kurtzman, 403 U.S. 602 (1971). See Lamb’s Chapel v. Center Moriches

Sch. Dist., 508 U.S. 384 (1993) (noting that despite heavy criticism of the Lemon

test, Lemon has not been overruled). See also Jager v. Douglas County Sch. Dist.,

862 F.2d 824, 828–29 (11th Cir.), cert. denied, 490 U.S. 1090 (1989) (discussing appropriateness of using Lemon test).

Under the Lemon test, ‘‘first, the statute must have a secular legislative purpose;

second, its principal or primary effect must be one that neither advances nor inhibits religion. . . ; finally, the statute must not foster ’an excessive government entanglement with religion.’’’ Lemon, 403 U.S. at 612–13 (citations omitted). Allowing

Congress to determine the application and reach of the tax code fulfills the ‘‘secular

purpose’’ element of the Lemon test since only Congress has power under Article I

of the constitution to make and levy taxes. As upheld in Regan v. Taxation With

Representation, 461 U.S. 540, 544 (1983), Congress may constitutionally permit certain speakers to be treated differently than others in the context of the tax statute.

In Reagan the lobbying limits for exempt organizations were upheld against a constitutional challenge even though different tax-exempt organizations were not subject to the same limitations. As stated in Rosenberger v. Rector and Visitors of Univ.

Of Va., 515 U.S. 819, 825 (1995):

Regan relied on a distinction based on preferential treatment of certain speakers—veterans organizations—and not a distinction based on the content or messages of those groups.

Accordingly, allowing Congress to determine the application of the tax code does

not violate the secular purpose of the legislation.

Under the second prong of the Lemon test, legislation will only violate the Establishment Clause if its primary effect is to advance or inhibit religion. The effects

prong of the Lemon test ‘‘’asks whether, irrespective of [the] government’s actual

purpose, the practice under review in fact conveys a message of endorsement or disapproval’’’ of religion. Wallace v. Jaffree, 472 U.S. 38, 56 n.42 (quoting Lynch v. Donnelly, 465 U.S. at 690 (O’Connor, J., concurring)). Modifying the absolute ban on political intervention to conform to the ‘‘insubstantiality’’ test now used in the lobbying

test conveys no such endorsement.

Moreover, HR–2357 avoids the excessive entanglement of the government with religious institutions, in conformance with the third Lemon requirement ‘‘The First

Amendment does not prohibit practices which by any realistic measure create none

of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to

have meaningful and practical impact.’’ Lee v. Weisman, 505 U.S. 577, 598 (quoting

Schempp, 374 U.S. at 308 (Goldberg, J., concurring)). In addition, the U.S. Supreme

Court has previously upheld the tax exemption for all religious organizations as required in order to avoid the excessive entanglement of the government in to the affairs of the church. Walz v. Tax Commission, 397 U.S. 664, 671 (1970).(2) It is for

all these reasons that ‘‘The Houses of Worship Political Speech Protection Act’’ is

constitutional, and a legally appropriate act for Members of Congress to support.

II. CURRENT LAW

The phrase ‘‘no substantial part of the activities’’ is found in the current version

of the Internal Revenue Code, section 501(c)(3), and it relates to the limit of how

much ‘‘lobbying,’’ or legislative activity a church or exempt organization may conduct. The Houses of Worship Political Speech Protection Act (HR–2357) uses that

same phrase to loosen the absolute ban now applying to any ‘‘political activity’’

(speech or association) by a house of worship.(3)

As a rough rule-of-thumb, the phrase ‘‘no substantial part of the activities’’ has

generally come to mean no more than five percent (5%) of an organization’s overall

expenditures of time, money and personnel. The five percent (5%) limit also follows

the objective expenditure allowances (but a much lower rate) permitted for tax-exVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
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(4) 100 Cong. Rec. 9604 (1954). (5)See, Hopkins, The Law of Tax-Exempt Organizations at 327 (6th ed. 1992)(herein ‘‘Hopkins’’). (6) Churches are not permitted to make the election for lobbying activities pursuant to IRC

’501(h)(5). This exclusion means that the lobbying activities of churches is governed by the’’ substantial part test,’’ which is a facts and circumstances evaluation. IRS Reg. ’1(a)(4); Kentucky

Bar Foundation, Inc. v. Comm’r, 78 T.C. 971 (1982)(the issue of ‘‘[]substantial[ity]’’ is a question

of facts and circumstances). Moreover, for the same reason that churches need not file an annual

tax return (IRC ’6033(a)(2))—to avoid government entanglement—so too churches may not make

the IRC ’501(h) election.

empt organizations, but not churches or houses of worship, in IRC 501(h), the socalled safe-harbor for lobbying activities.

The ‘‘Houses of Worship Political Speech Protection Act’’ recognizes that no house

of worship should be penalized for an occasional or inadvertent statement or action

that may be regarded as ‘‘political intervention.’’

III. THE NEED FOR THE HOUSES OF WORSHIP POLITICAL SPEECH

PROTECTION ACT

Congressional hearings over the last few years have served to highlight the

abuses of the IRS in the name of tax code enforcement. In addition, the IRS has

conducted tax or compliance audits of ‘‘the Heritage Foundation, Citizens for a

Sound Economy, the Christian Coalition, The National Rifle Association, Freedom

Alliance, the Western Journalism Center, the National Center for Public Policy, and

National Review.’’ The Washington Times (January 8, 1998 at A.7). These and other

conservative organizations have been audited as well, while their counterparts in

the liberal establishment have gone unscathed.

This type of selective federal investigation and enforcement highlights the need

for regulatory reform and deregulation. The point is that no church or house of worship should be penalized for simply speaking out on the issues, candidates, or public

leaders, occasionally or inadvertently engaging in activity that may be regarded as

political, or accurately providing the voting records and issue stances of elected officials and candidates. Federal agencies such as the IRS cannot become so highly politicized that they become federal arbiters of political thought and permissible

speech. The current federal tax code allows the IRS the unbridled leeway and discretion to conduct such politically motivated audits under the guise of regulatory enforcement, and it is using this unbridled discretion in a partisan and selective fashion.

To reign in the IRS’s unbridled discretion and bring balance and fairness back to

the system the time has come to change the ‘‘Johnson Amendment.’’ This amendment was highly partisan and political and was specifically designed in 1954 by

then Senator Lyndon Johnson to ‘‘deny tax-exempt status to not only those people

who influence legislation but also those who intervene in any political campaign on

behalf of any candidate for any political office.’’(4) Senator Johnson was angry that

two non-profit Texas groups had supported his primary opponent, so he rammed his

amendment through the Congress as a floor amendment without any benefit of a

congressional hearing or debate.(5)

The rule has become so intrusive, and so significant a threat to the First Amendment rights of all churches, synagogues, mosques and houses of worship, that total

removal of tax exemption can be imposed if a candidate for office addressing a religious body is favorably introduced, or is supported from the pulpit. Under the law

as written, a one hour political strategy meeting held on the premises of a church

or charity, without paying a market rental, could trigger the complete destruction

of the institution by the IRS. A priest who speaks on the moral issues of abortion

or capital punishment during a campaign season runs the risk of triggering an IRS

investigation or violating the ‘‘coded words’’ restriction. As written, the rule of

’501(c)(3) is akin to a highway in which traffic to 65 mph is permissible, but if a

motorist goes even 1 mph over the speed limit, the police can arrest the motorist

who would then be subject to the death penalty; and absurd situation. This is not

only manifestly unfair, but an intolerable infringement by the IRS of the fundamental rights of free speech, and the free exercise of religion. It also intrusively entangles the government in religious matters.

The solution is simple. Under current tax law, tax exempt organizations may

carry on lobbying if their efforts constitute ‘‘no substantial’’ amount of their activities. IRC 501(c)(3). While the term ‘‘substantial’’ is not defined for those entities not

making the safe-harbor election permitted under IRC 501(h), such as churches,(6) for

over 40 years courts have generally determined that if no more than five percent

(5%) of the time and effort of the organization is devoted to lobbying, the lobbying

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(7) Judith Kindell and John F. Reilly, ‘‘Election Year Issues,’’ Exempt Organizations Continuing Education Technical Instruction Program, www.irs.gov (‘‘2002 CETIP Text’’).

was not ‘‘substantial.’’ See, Seasongood v. Commissioner, 227 F.2d 907, 912 (6th Cir.

1955); World Family Corp. v. Commissioner, 81 T.C. 958 (1983)(exempt organization’s lobbying activities which were less than ten percent (10%)—but more than

5%—of its total efforts was ‘‘insubstantial.’’ Indeed, Marcus Owen, the former head

of Exempt Organizations for the IRS, has been quoted as saying that ‘‘the law in

this area needs to be clarified since anything from five percent to fifteen percent of

total expenditures has been permitted for [l]egislative activity.’’ Washington Times, December 2, 1997, p. A5. From this line of cases, and comments, it appears that

as long as an organization expends only five percent (5%) or so of its overall expenditures on legislative activity such activity will be regarded as ‘‘insubstantial’’ and not

result in a loss of exemption. Adopting a similar standard for political activity, and

amending IRC ’501(c)(3) as proposed in the House of Worship Political Speech Protection Act, does precisely that.

IV. TAX EXEMPTION IS LINKED TO SOCIAL POLICY, WHICH LEADS TO

THE INEVITABLE RESULT OF REVOCATION OF TAX EXEMPTION FOR

RELIGIOUS INSTITUTIONS AND RELIGIOUS ORGANIZATIONS

Ever increasing inroads have been made into the tax exempt status of religious

organizations and churches. Both the IRS and atheist groups have been seeking the

revocation of tax exempt status for religious institutions for some time. See, e.g., Walz v. Tax Commission, 397 U.S. 664 (1969). Religious institutional doctrine has

historically been at odds with social mores which are in vogue. To condition tax exemption on a religious institution’s willingness to conform to fashionable ideals (e.g., ordination of homosexuals, same sex marriages) unavoidably leads to the demise of

tax exemption for houses of worship. To avoid this egregious result, it is necessary

to modify the tax code, and allow a wider berth for houses of worship to generally

engage in political speech.

The Threat to Free Speech and Free Exercise is Real Since the IRS

Sanctions for Using ‘‘Coded Language’’ and is Contradictory on Whether ‘‘Intent’’ Is Relevant

The Service has taken the position that ‘‘coded language’’ violates the political

prohibition. 2002 CETIP at 344–45. It explains that ‘‘[t]he concern is that [an exempt] organization may support or oppose a particular candidate without specifically naming the candidate by using code words to substitute for the candidates

name in its message, such as ‘‘conservative,’’ ‘‘liberal,’’ ‘‘pro-life,’’ ‘‘pro-choice,’’ ‘‘antichoice,’’ ‘‘Republican,’’ or ‘‘Democrat,’’ etc. . . .’’ 2002 CETIP at 345. Then in a footnote, it contradicts its admonition not to use these very ‘‘coded words’’ and states

that:

‘‘[a] finding of political campaign intervention from the use of coded words is

consistent with the word ‘‘candidate’’—the words are not tantamount to advocating support for or opposition to an entire political party, such as ‘‘Republican,’’ or a vague and unidentifiable group of candidates, such as ‘‘conservative’’ because the sender of the message does not intend the recipient to interpret

them that way. Coded words, in this context, are used with the intent of conjuring favorable or unfavorable images—they have pejorative or commendatory

connotations. [So,] the voter in Vermont, hearing an exhortation regarding ‘‘liberal’’ candidates, may not know who fits that label in Kansas, but presumably

he knows who stands for what in Vermont, which is why the coded word is used

in the first place.’’ id. at 345, n. 10 (underlining added).

The confusion and fear surrounding the requirements for compliance with the political intervention ban in section 501(c)(3) are quite real. One need look no further

than the guidance pronouncements of the IRS and others in this area. For example,

in ‘‘Election Year Issues,’’ (7) the tome relied upon by most practitioners in this area

as an indicator of the Service’s approach to political campaign activities by exempt

organizations, the Service has taken the view that educational or religious activities

which otherwise qualify as exempt activities can nevertheless constitute prohibited

political activity:

‘‘The most common question that arises in determining whether an IRC

501(c)(3) organization has violated the political campaign intervention prohibition is whether the activities constitute political intervention or whether they

are educational [or religious], purposes for which an IRC 501(c)(3) organization

may be formed . . . Sometimes, however, the answer is that the activity is

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(8)The courts have repeatedly held that when a regulatory agency has conflicting interpretations or applications of its rules and regulations, due process is violated because no clear or fair

notice of what is required for compliance has been given. Satellite Broadcasting Co., Inc. v. FCC, 262 U.S. App. D.C. 274, 824 F.2d 1 (D.C. Cir. 1987); General Elec. Co. v. EPA, 311 U.S. App.

D.C. 360, 53 F.3d 1324, 1327 (D.C. Cir. 1995); United States v. Chrysler Corp., 332 U.S. App.

D.C. 444, 158 F.3d 1350, 1354–57 (D.C. Cir. 1998) (holding that agency failed to provide fair

notice of specific requirements of compliance and therefore could not move to enforce its regulations); Rollins Envtl. Svcs. (NJ) Inc. v. EPA, 290 U.S. App. D.C. 331, 937 F.2d 649, 653 (D.C.

Cir. 1991) (rescinding fine assessed by EPA because regulation was ambiguous); Gates & Fox

Co., Inc. v. OSHRC, 252 U.S. App. D.C. 332, 790 F.2d 154, 156 (D.C. Cir. 1986) (holding that

agency failure to give fair notice of its interpretation of its regulations precluded enforcement);

Trinity Broadcasting of Florida, Inc., et al. v. FCC, 211 F3d 618, 2000 U.S. App. LEXIS 8918

(D.C. Cir. 2000) (same). (9)That is, organizations described in IRC 170(c)(2)(B), 501(c)(3), 2055(a)(2), 2106(a)(2)(A)(ii)

& (iii), and 2522(a)(2) and (b)(2).

both—it is educational [or religious], but it also constitutes intervention in a political campaign.’’

2002 CETIP at 349. In a 1989 ruling the Service stated that ‘‘[e]ducating the public is not inherently inconsistent with the activity of impermissibly intervening in

a political campaign.’’ TAM 8936002. Then in a 1999 Tax Advice Memorandum, 199907021, the IRS went on to say ‘‘[e]ven if the organization’s advocacy is educational, the organization must still meet all other requirements for exemption. . .’’. So, the IRS says you can do it, but you can’t.

There is also considerable uncertainty over whether one’s ‘‘intent’’ or ‘‘purpose’’ in

making the communication matters. In its 1993 version of ‘‘Election Year Issues’’ the IRS stated ‘‘the motivation of an organization is irrelevant when determining

whether the political campaign prohibition has been violated.’’ 1993 CETIP at 414– 15. However, in its 2002 version the IRS, discussing the debate its 1993 statement

generated, stated: ‘‘Therefore, the resolution of the ’bad motive’ issue depends upon the way the

activity is conducted (the facts and circumstances) and upon any [sic] inquiry

into the state of mind of the organization.’’

2002 CETIP at 351. It’s clear, the IRS cares about motive or purpose, but then

again it doesn’t.(8)

V. THE ORIGINAL PURPOSE OF IRC 501(C)(3) WAS TO PREVENT POLITICAL ACTIVISM OF NON–PROFIT GROUPS IN TEXAS DURING THE

1954 SENATORIAL CAMPAIGN OF L.B.J.

Tax exemption under IRC 501(c)(3) requires four basic criteria.(9) The chief prohibition amongst these is that nonprofit organizations, including houses of worship,

must ‘‘not participate in, or intervene in’’ political campaigns. IRC ’501(c)(3). As

noted above, this provision was added to the federal tax law in 1954, without benefit

of congressional hearings, in the form of a floor amendment in the Senate, 100

Cong. Rec.9604 (1954). During consideration of the legislation that was to become

the Revenue Act of 1954, Senator Lyndon B. Johnson of Texas forced the amendment out of his anger that local two Texas non-profit groups had supported his primary opponent. Hopkins, ‘‘The Law of Tax-Exempt Organizations,’’ 327 (6th ed.

1992) (hereinafter ‘‘Hopkins’’).

The tax exemptions contained in IRC 501(c)(3) originated as a part of the Tariff

Act of 1894. The provision stated that ‘‘nothing herein contained shall apply to. . .

corporations, companies, or associations organized and conducted solely for charitable, religious, or educational purposes’’ (ie., houses of worship) After ratification

of the Sixteenth Amendment, Congress enacted the Tariff Act of 1913, exempting

from the federal income tax ‘‘any corporation or association organized and operated

exclusively for religious, charitable, scientific, or educational purposes, no part of the

net income of which inure to the benefit of any private shareholder or individual.’’

In the Revenue Act of 1918, the enumeration of tax-exempt organizations was expanded to include those organized ‘‘for the prevention of cruelty to children or animals.’’ The Revenue Act of 1921 expanded the statute to exempt ‘‘any community

chest, fund, or foundation’’ and added ‘‘literary’’ groups to the list of exempt entities.

The Revenue Act of 1924, 1926, 1928, and 1932 did not provide for any changes in

the law of tax-exempt organizations.

The Revenue Act of 1934 carried forward the exemption requirements as stated

in the prior revenue measures and added the rule that ‘‘no substantial part’’ of the

activities of an exempt organization can involve the carrying on of ‘‘propaganda’’ or

‘‘attempting to influence legislation.’’ The Revenue Acts of 1936 and 1938 brought

forward these same rules, as did the Internal Revenue Code of 1939. The current

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(10)This ruling was a reversal of a prior ruling wherein the IRS stated that the prohibitions

against involvement in political campaigns ‘‘do not refer only to participation or intervention

with a partisan motive, but to any participation or intervention which affects voter acceptance

or rejection of a candidate.’’ Consequently, the IRS determined that ‘‘the organization’s solicitation and publication of candidates’ views on topics of concerns to the organization can reasonably be expected to influence voters to accept or reject candidates.’’ Rev Rul.78—I 60. 1978— 1 C.B. at 154 (emphasis added). This flat ban on all First Amendment activity relating to politics engendered a public outcry and a rare reversal by the IRS. Hopkins at 332.

IRC ’501(c)(3) language follows the ‘‘Johnson Amendment’’ and came into being upon

enactment of the Internal Revenue Code in 1954. 68A Stat. 163 (ch. 736).

VI. THE SUBSEQUENT INTERPRETATIONS OF IRC 501(C)(3) BY THE IRS

AND COURTS MAKES IT CLEAR THAT THIS PORTION OF THE TAX

CODE IS MEANT TO REPRESS PARTICIPATION IN THE POLITICAL

PROCESS

The requirement that a church or charitable organization not engage in political

campaign activities has been expanded to prohibit even remotely partisan involvement. In Christian Echoes National Ministry Inc. v U.S., 470 F2d 849 (10th Cir 197.

cert. den. 414 U.S. 864 (1973), a federal appeals court denied tax exempt status to

a religious organization for backing a conservative political agenda. The organization, by means of publications and broadcasts, expressed its opposition to candidates

and incumbents considered too liberal and endorsed conservative officeholders. The

Tenth Circuit summarized the unforgivable offense: ‘‘These attempts to elect or defeat certain political leaders reflected. . . [the organization’s] objective to change the

composition of the federal government.’’ Christian Echoes, 470 F2d at 856. See also

Monsky v. Comm., 36 T.C.M. 1046 (1977); Giordano v Comm., 36 T.C.M. 430 (1977).

This flat ban on religious involvement in politics is not limited to active campaigning, however. In 1978 the IRS issued a ruling that confined ‘‘voter education’’ activities to those that are nonpartisan in nature. Rev. Rul. 78–248, 1978—1 C.B.

154.(10)

In a later ruling the IRS specified the following factors as demonstrating the absence of prohibited campaign activity by a church or nonprofit organization:

1. the voting records of all incumbents will be presented;

2. candidates for reelection will not be identified;

3. no comment will be made on an individual’s overall qualifications for public

office;

4. no statements expressly or impliedly endorsing or rejecting any incumbent

as a candidate for public office will be made;

5. no comparison of incumbents with other candidates will be made;

6. the organization will point out the inherent limitations of judging the qualifications of an incumbent on the basis of certain selected votes, by stating

the need to consider such unrecorded matters as performance on subcommittees and constituent service;

7. the organization will not widely distribute its compilation of incumbents’ voting records;

8. the publication will be distributed to the organization’s normal readership

only; and

9. no attempt will be made to target the publication toward particular areas in

which elections are occurring nor to time the date of publication to coincide

with an election campaign.

Rev. Rul. 80–282, 1980–2 C.B. 178. The IRS’ application of IRC 501(c)(3) then, is

to limit any preferential expression for a political candidate. There is no compelling

governmental reason to so limit the First Amendment activities of churches and

houses of worship. This restriction should thus be modified to track the ‘‘insubstantial’’ standard regarding lobbying, and apply that standard to political activity as

well.

VII. THE IRS APPLICATION OF THE LIMITATION ON CHURCHES PARTICIPATING IN THE POLITICAL PROCESS IS EXPANDING, INTRUSIVE

AND SELECTIVE

Under the First Amendment, the government lacks the license to make determinations about whether a ‘‘creed’’ or ‘‘form of worship’’ is sufficiently ‘‘recognized,’’ and whether the church has an adequate organizational structure (i.e., properly ordained ministers, a literature ‘‘of its own,’’ etc.) to prevent IRS intrusion and inspection. If ‘‘it is not within the judicial ken to question the centrality of particular beliefs or practices of faith’’ and the ‘‘courts must not presume to determine the place

33

(11) Indeed, by the standards the IRS applies today, Jesus and the Apostles would not qualify

for ‘‘church’’ status. See, Internal Revenue Service Manual ’321.3 (outlining the 14 point test

used by the IRS to determine ‘‘church’’ status). (12) Branch Ministries v. Rossotti, 40 F. Supp. 2d 15 (D.D.C. 1999); aff’d, 211 F.3d 1137 (D.C.

Cir. 2000).

of a particular belief in a religion or the plausibility of a religious claim,’’ Employment Division v. Smith, 494 U.S. 872, 878 (1990) (citations omitted), it stands to

reason that the other branches of the federal government are constitutionally unfit

to make those judgments as well. Many independent small churches do not meet

regularly, do not have an independent existence, do not have ordained ministers, do

not have a formal doctrinal code, and yet nonetheless are churches warranting tax

exemption.(11)

Similarly, Treasury regulations describe a church as an organization the duties

of which include the ‘‘ministration of sacerdotal functions and the conduct of religious worship.’’ Reg. I.51 I–2(a)(3)(ii). This definition begs the question, because it

requires Treasury officials to exercise their own judgment in determining what is

a priestly function, and what is sufficient ‘‘religious worship’’ to qualify for ‘‘church’’

status.

Governmental judgments of this kind are not only unworkable, they are dangerous and unconstitutional. The Supreme court has reiterated the oft repeated

principle that ‘‘religious freedom encompasses the power of religious bodies to decide

for themselves, free from state interference, matters of church government as well

as those of faith and doctrine. Serbian Orthodox Diocese v. Milivojevich, 426 U.S.

696, 722 (1976) (emphasis added); Kedroffy St. Nicholas Cathedral, 344 U.S. 94, 116

(1952). In Corp. of Presiding Bishops v. Amos, 483 U.S. 327, 341 (1987), Justice

Brennan noted: ‘‘religious organizations have an interest in autonomy in ordering

their internal affairs, so that they may be free to: ‘‘Select their own leaders, define

their own doctrines, and run their own institutions.’’ (citations and internal

quotation marks omitted, emphasis added). Given the weight of constitutional precedent in this area, it defies rationality for the government to empower its tax collecting arm with the ability to invade the religious autonomy of churches while

other branches of the government are constitutionally forbidden from doing so.

This is of even greater concern because conservative or orthodox and liberal or

reform church organizations are treated quite differently by the IRS. For example,

a conservative evangelical church in upstate New York, the Church at Pierce Creek,

had its tax exemption revoked in 1995 for impermissible ‘‘political’’ activity. The offending activity involved its published moral and religious stand in the newspaper

calling abortions on demand, homosexuality, and premarital sex ‘‘sins.’’ ‘‘Christians’’

were admonished to oppose such ‘‘sins’’ and not vote for then Governor Clinton.(12)

Historically, currently, and at the time the Church at Pierce Creek was having its

tax exempt status revoked, numerous churches engaged in similar or more egregious violations, as follows:

Historical Context

1. Since the campaign of Thomas Jefferson, religious and political controversy has

been prominent in approximately one of every three campaigns for the presidency.

B. Dulce & E. Richter, Religion and the Presidency v, 1–11 (1962). See also H. Foote,

The Religion of Thomas Jefferson 45 (1960) (electioneering pamphlets written and

distributed by clergymen accused Jefferson of atheism and thus ‘‘too dangerous an

enemy of Christianity to be president’’).

2. ‘‘During the 1980 election year, a number of religious groups participated in

energetic presidential and congressional campaign activities to promote the election

of politicians who share their beliefs.’’ Note, ‘‘Religion and Political Campaigns: a

Proposal to Revise Section 501(c)(3) of the Internal Revenue Code,’’ 49 Fordham L.

Rev. at 537 (1981) (footnotes omitted).

Political Activity by Churches Where No Sanctions Have Been Levied, But

for Which Other Churches Have Had Their Tax Exemptions Revoked

3. ‘‘[T]he Reverend Jesse Jackson . . . campaigned from pulpits of black churches

across the nation in his pursuit of the Democratic nomination’’ for President in

1984. Reichley, Religion in American Public Life (The Brookings Institution, Wash.,

D.C. 1985). See also Rosenthal, ‘‘Prelates and Politics: Current Views on the Prohibition Against Campaign Activity,’’ Tax Notes 1122 (1991); and Chisolm, ‘‘Politics and

Charity: A Proposal for Peaceful Coexistence.’’ 58 Geo. Wash. L. Rev. (No. 2) 308

(1990); Tesdahl, ‘‘Intervention in Political Campaigns by Religious Organizations

34

(13)The cited dates are the dates of articles about the church campaign events, not necessarily

the dates of the events themselves.

After the Pickle Hearings—A Proposal for the 1990s,’’ 4 Exempt Org. Tax Rev. (No.

9) 1165 (1991).

4. The IRS Chief Counsel’s office ‘‘reluctantly’’ concluded in 1989 that an organization ‘‘probably’’ did not intervene in a political campaign on behalf of or in opposition to a candidate for public office, even though the organization ran a political advertising program that (1) was, in the words of the IRS, ‘‘mostly broadcast during

a two week period around the Reagan/Mondale foreign and defense policy debate on

October 21, 1984,’’ (2) contained statements that ‘‘could be viewed as demonstrating

a preference for one of the political candidates’’ [Mondale], (3) ‘‘could be viewed’’ as

having content such that ‘‘individuals listening to the ads would generally understand them to support or oppose a candidate in an election campaign,’’ (4) involved

statements that were released so close to the November vote as to be ‘‘troublesome.’’

IRS Technical Advice Memorandum 8936002. Even though these campaign broadcasts were in clear violation of the IRS’ voter education rules, see e.g., Rev. Rul. 86–

95, 1986–1 C.B. 332, the IRS nonetheless took no action against this charitable organization for this campaign activity.

5. 9/25/94 (13)

—then-Governor of New York Mario Cuomo, President Clinton, and

New York Mayor Rudolf Gulliani all campaigned on behalf of Governor Cuomo from

the pulpit of the Bethel A.M.E. Church in Harlem, New York.

6. 10/23/94—Senator Charles Robb and Governor Wilder campaigned on behalf of

Senator Robb from the pulpit of the Trinity Baptist Church in Richmond, Virginia.

7. 10/11/94—California Democratic gubernatorial candidate Kathleen Brown campaigned in five different Los Angeles churches: Bethel A.M.E. Church, the Mount

Tabor Missionary Baptist Church, the First A.M.E. Church, and the West Los Angeles Church of God in Christ.

8. 11/21/92—Vice President Al Gore campaigned from the pulpit of three different

Savannah, Georgia churches on behalf of Democratic run-off candidate Wyche

Fowler.

9. 4/5/92—Presidential candidate Bill Clinton campaigned from the pulpit of the

Bridge Street A.M.E. church in Harlem, New York.

10. 1/27/92—Democratic presidential candidate Tom Harkin campaigned from the

pulpit of the Heritage United Church of Christ, located in Baltimore, Maryland.

11. 8/14/90—District of Columbia Mayor Marion Barry campaigned from the pulpit of the Israel Baptist Church.

12. 4/30/90—New York Democratic congressional candidate Charles Shumer campaigned at St. John’s Church in New York, speaking with 30 black ministers.

13. 4/98—Democratic congressional candidate contenders Ohio State Senator Jeffrey D. Johnson and Cuyahoga County Prosecutor Stephanie Tubbs Jones campaigned at the Starlight Baptist Church in Cleveland ‘‘for an endorsement interview

by a black ministers group.’’ Johnson spends his Sundays campaigning at black

churches.

14. 4/8/98—Florida Republican gubernatorial candidate campaigned at Faith Memorial Baptist Church in Liberty City.

15. 3/31/98—Detroit Democratic gubernatorial candidate Doug Ross ‘‘announced a

19-member Executive Board of Clergy United for Ross’’ which was ‘‘expected to include 250 ministers by May.’’

16. 3/8/98—Chicago Democratic gubernatorial candidate Roland Burris campaigned at Chicago churches.

17. 2/22/98—Chicago Democratic gubernatorial candidate Jim Burns ‘‘preached

his crime-fighting message to South Side parishioners at a storefront church called

the House of Refuge.’’

18. 2/14/98—Democratic congressional candidate Irma Cohen ‘‘is relying on Operation Big Vote, the church-based alliance set up by Florida Democrats in 1994 to

bring out the black vote. ’The one thing we have going for us is the church network,’

Kennedy said. ’Rightly or wrongly, 90 percent of the people in the church do what

the minister says.’’

19. 1/6/98—Former Democrat Congressman Rev. Floyd Flake, endorsed the congressional candidacy of New York Democratic Assemblyman Gregory Meeks, during

services at Flakes’ Church, the Allen African Methodist Episcopal Church in Jamaica, Queens.

20. 11/13/97, 10/24/97—New Jersey Democratic gubernatorial candidate Jim

McGreevy during the course of his campaign, campaigned in more than 100 churches, and made 104 campaign visits to African-American churches.

35

21. 11/3/97—Both Virginia Democratic gubernatorial candidate Donald S. Beyer,

Jr. and Virginia Republican candidate James S. Gilmore, III campaigned in churches across the State of Virginia.

22. 11/2/97—Roman Catholic Bishop Frank J. Rodimer endorsed New Jersey

Democratic gubernatorial candidate Jim McGreevy in his Sunday service homily at

St. John’s Cathedral in Paterson.

23. 11/1/97, 10/29/97—Executive Director of the Black Ministers Council of New

Jersey, Rev. Reginald Jackson, endorsed Republican Governor Christie Whitman,

while 24 African-American ministers representing more than 600 churches statewide endorsed Democratic gubernatorial candidate Jim McGreevey.

24. 10/20/97—Rev. Al Sharpton endorsed the candidacy of New York Democratic

mayoral candidate Ruth Messinger during Sunday worship services at the Bethel

A.M.E. Church in Harlem, and at the New Jerusalem Baptist Church in Queens.

25. 10/4/97—Washington Governor Gary Locke made four campaign visits to a

Redmond Buddhist Temple, where he was offered sizable campaign donations.

26. 10/4/97—Muslim Amatullah Yamini campaigned in Christian churches in the

Onondaga County, New York, State legislative district Democratic primary.

27. 10/2/97—Houston, Texas Democratic mayoral candidate Lee P. Brown campaigned at the Green Grove Missionary Church.

28. 10/1/97—New York Democratic mayoral candidate Ruth Messinger campaigned at ‘‘the Christian Life Center, a 7000-member nondenominational ministry

in Brownsville, Brooklyn.’’ 29. 5/15/97—The Black Clergy of Philadelphia, representing 450 churches, announced their choices for judicial candidates at the Vine Memorial Baptist Church.

The clergy members were joined by many of the candidates they were endorsing.

30. 12/9/96—At the Houston, Texas, Windsor Village United Methodist Church: ‘‘The message to God came just after U.S. Rep. Richard Gephardt of Missouri, the

Democratic leader of the U.S. House, asked the audience to support the reelection

of Democratic U.S. Rep. Ken Bentsen.’’ Rep. Gephardt and Rep. Bentsen then proceeded to campaign at a Chinese Baptist church and several African American

churches in Houston.

31. 11/11/96—As the Denver Post plainly put it: ‘‘Don’t try to tell a black minister

about the separation of church and state. Not when the state comes striding into

the sanctuary nearly every Sunday, begging for votes. . . . Other political and religious leaders in Denver say far more candidates than Webb owe their elections to

northeast Denver and the political work of black churches there. They say Tim

Wirth and Gary Hart could not have won their U.S. Senate races without an allout effort from the church congregations.’’ 32. 11/5/96—U.S. Senator Paul Simon campaigned at the Grace United Methodist

Church in Springfield, Illinois, on behalf of Democratic congressional candidate Dick

Durbin.

33. 11/5/96—Rev. Jesse Jackson campaigned on behalf of Rhode Island Democratic

candidates at the Pond Street Baptist Church in Providence.

34. 11/4/96—President Clinton campaigned at the St. Paul AME Church in

Tampa, Florida.

35. 11/4/96—Democratic Rep. Martin Frost ‘‘made campaign stops at four AfricanAmerican churches [during Sunday services] in southeast Fort Worth, Texas.’’

36. 11/4/96—Louisiana Democratic Senatorial Candidate Mary Landrieu ‘‘visited

African-American churches Sunday, including Asia Baptist Church, where she received an enthusiastic endorsement from the Rev. Zebadee Bridges.’’

37. 11/4/96—North Carolina Democratic ‘‘Senate Candidate Harvey Gantt visited

five black Charlotte congregations on Sunday, mounting the pulpit in three . . .

‘There comes a time in a campaign when you have to trust the voters to do the right

thing,’ he said from the pulpit, ‘I’m not going to beat up on Senator Helms . . . All

I’m going to say is, he’s been there 24 years. That’s enough time.’ ’’

38. 11/4/96—Pastor Joe Fuiten of the Cedar Park Assembly of God Church in Seattle, Washington urged his congregants to vote for Republican candidates, while

across town at the Mount Zion Baptist Church, Rev. Samuel B. McKinney urged his

church members to vote the Democratic ticket.

39. 11/4/96—Democratic Senatorial candidate Mark Warner campaigned in African American churches across the State of Virginia.

40. 11/3/96—Democratic Memphis Mayor Herenton endorsed Democratic congressional candidate Harold Ford, Jr. at the Greater Imani Church, in Memphis, Tennessee.

41. 10/28/96—The Northeast Ministers Alliance, an organization of 60 mostly African American churches located in Houston Texas, endorsed a slate of Democratic

Candidates running for various state-level offices, and one Republican running for

local sheriff.

36

42. 10/21/96—President Clinton campaigned at the New Hope Baptist Church in

Newark, New Jersey.

43. 9/17/96—‘‘The Greater Denver Ministerial Alliance, representing more than

100 black churches and 20,000 Denver voters, endorsed Bill Clinton for president,

Al Gore for vice president, Democrat Ted Strickland for the Senate and Republican

Joe Rogers for the House.’’ 44. 9/13/96—Reverend Acen Phillips endorsed the candidacy of Republican congressional African American candidate Joe Rogers, at the Mount Gilead Baptist

Church, in Denver, Colorado.

45. 8/26/96—Vice President Al Gore campaigned with the Rev. Jesse Jackson at

the Fellowship Baptist Church in Charleston, North Carolina. The Rev. Jackson is

co-minister of the church.

46. 11/8/95—U.S. Democratic Rep. Cleo Fields campaigned for governor at a New

Orleans church.

47. 9/15/95—Several Orthodox Rabbis spoke from the pulpit in favor of Baltimore

Democratic mayoral primary candidates.

48. 8/12/95—‘‘the influential and powerful United Ministerial Coalition of Baltimore threw their thousands of affiliated church members behind the re-election effort of [Baltimore] Mayor Kurt L. Shmoke.’’

49. 5/18/95—Gubernatorial candidate Kentucky Senate President John ‘‘Eck’’ Rose

campaigned at the Canaan Missionary Baptist church in Louisville, Kentucky.

50. 2/28/95—Philadelphia Mayor Edward G. Rendell picked up a re-election endorsement from the Black Clergy of Philadelphia & Vicinity, representing more than

400 churches and ministries. The endorsement ‘‘was formally announced at a press

conference in the basement of the Vine Memorial Baptist Church in West Philadelphia.’’

51. 2/6/95—Chicago Democratic primary mayoral candidate Joe Gardner campaigned at the St. Stephen’s African Methodist Episcopal Church, on Chicago’s west

side.

52. 11/7/94—Rev. Jesse Jackson campaigned on behalf of Democratic candidates

at the New Hope Church of God in Christ, in Norfolk, Virginia.

53. 11/6/94—Republican Senatorial Candidate Ollie North and Democratic Senatorial incumbent Charles Robb both campaigned at Virginia churches.

54. 11/3/94—President Clinton campaigned for Democratic candidates at the Antioch Baptist Church in Cleveland, Ohio.

55. 10/31/94—New Jersey Democratic Senator Frank Lautenberg campaigned at

the Salem Baptist Church in Jersey City.

56. 10/24/94—Former Virginia Gov. Douglas Wilder campaigned for Virginia Senator Charles Robb at the Trinity Baptist Church.

57. 10/13/94—New Jersey Democratic Senator Frank Lautenberg was endorsed by

a group of 30 ministers at a news conference held at the Zion AME Church in

Brunswick, New Jersey.

58. 7/19/94—Democratic Rep. Maxine Waters campaigned at Detroit’s Dexter Avenue Baptist Church on behalf of Michigan Democratic gubernatorial candidate Howard Wolpe.

59. 6/2/94—Democratic Governor Mario Cuomo campaigned at the St. John Baptist Church in Buffalo, New York.

60. 5/13/94—Democratic Governor Mario Cuomo campaigned at ‘‘the Hillcreat

Jewish Center in Queens, a Conservative shul, to Temple Emmanuel on Fifth Avenue, a Reform synagogue, and wrapped up his evening at the Orthodox Union dinner at the Grand Hyatt Hotel.’’

VIII. THE IRS SHOULD NOT HAVE UNBRIDLED DISCRETION

Clearly, churches and houses of worship engage in ‘‘political activity.’’ However,

the IRS uses its authority selectively to only target those it wishes to silence or

threaten. Today it may be orthodox and conservative views, but tomorrow it could

be liberal or unconventional views. Such unbridled discretion not only creates constitutional concerns, but illustrates why Congress needs to reign-in the IRS to insure constitutional compliance and lift the sword of Damocles hanging over churches. The Supreme Court has ‘‘previously identified two major First Amendment risks

associated with unbridled licensing schemes: self-censorship by speakers in order to

avoid being denied a license to speak [or having one withdrawn]; and the difficulty

of effectively detecting, reviewing and correcting content-based censorship as applied

without standards by which to measure the licensor’s action.’’ City of Lakewood v.

Plain Dealer Publishing Company, 108 S. Ct. 2138, 2145 (1988).

In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969), the court also

explained: ‘‘[w]e have consistently condemned licensing [or regulatory] schemes

37

which vest in administrative officials discretion to grant or withhold a permit upon

broad criteria.’’ This is the heart of the problem which has been created due to the

IRS’ discretion and selective application of the law. It is precisely the absence of sufficient clear and specific standards by which to gage the qualifications and conduct

of houses of worship in the political activities area which needs to be corrected. Otherwise, government officials may unconstitutionally ‘‘pursue their personal predilections.’’

IX. A SIMPLE REVISION TO THE TAX CODE WILL ALLEVIATE THIS

PROBLEM

The IRS’ enforcement and regulation of the ‘‘political’’ activities of houses of worship is discriminatory and improperly based upon its ‘‘predilections’’ of the moment:

one church is permitted to say something another is not, one’s activity is appropriate, but same activity by another not, etc. To avoid this type of arbitrary or capricious enforcement, and remove the dramatic chilling impact the IRS’ selective enforcement has, the Houses of Worship Political Speech Protection Act proposes a substantiality test for this type of ‘‘political activity,’’ as is currently the case with regard to legislative or lobbying activity by churches and houses of worship.

Present Language of IRC 501(c)(3):

The following organizations are [exempt from taxation under this subtitle. . .]

Corporations, and any community chest, fund, or foundation, organized and

operated exclusively for religious charitable, scientific, testing for public safety,

literary, or educational purposes, or to foster national or international amateur

sports competition (but only if not part of its activities involve the provision of

athletic facilities or equipment), or for the prevention of cruelty to children or

animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is

carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate

in, or intervene in (including the publishing and distribution of statements), any political campaign on behalf of (or in opposition to) any

candidate for public office.

Proposed Change to IRC 501(c)(3) in the Houses of Worship Political

Speech Protection Act:

The following organizations are [exempt from taxation under this subtitle. . .]

Corporations, and any community chest, fund, or foundation, organized and

operated exclusively for religious charitable, scientific, testing for public safety,

literary, or educational purposes, or to foster national or international amateur

sports competition (but only if not part of its activities involve the provision of

athletic facilities or equipment), or for the prevention of cruelty to children or

animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is

carrying on propaganda, or otherwise attempting to influence legislation (except

as otherwise provided in subsection (h)), and except in the case of an organization described in section 508(c)(1)(A) (relating to churches), which

does not participate in, or intervene in (including the publishing and

distribution of statements), any political campaign on behalf of (or in

opposition to) any candidate for public office and, in the case of an organization described in section 508(c)(1)(A), no substantial part of the

activities of which is 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.

X. CONCLUSION

Given the historic and critically necessary role churches and houses of worship

have played in speaking to the issues of the day, and with the continuing desire

of many religious people in the United States to speak out collectively on matters

of moral importance, the time has come to rectify a nearly 50-year old injustice and

to change IRC 501(c)(3), as proposed in the Houses of Worship Political Speech Protection Act.

f

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Chairman HOUGHTON. Dr. Gaddy?

STATEMENT OF REVEREND C. WELTON GADDY, PH.D.,

EXECUTIVE DIRECTOR, INTERFAITH ALLIANCE

Reverend GADDY. Yes. Thank you, Chairman Houghton and

Members of the Subcommittee on Oversight. I appreciate the opportunity to share with you concerns about the two bills pending

before this Committee.

My name is C. Welton Gaddy. I serve as Executive Director of

the Interfaith Alliance, a faith-based, nonpartisan, grassroots organization dedicated to promoting the positive and healing role of religion in public life, and challenging those who employ religion to

promote intolerance. The Interfaith Alliance is supported by more

than 150,000 Members drawn from over 50 different religious traditions, local alliances in 38 States, and a national network of religious leaders.

I also serve as Pastor for preaching and worship at Northminster

Baptist Church in Monroe, Louisiana.

Profound constitutional issues are at stake in these two legislative proposals. Adoption of this legislation would alter the whole

landscape of church-State relations in this Nation. Current law

protects the integrity of houses of worship and prevents government entanglement in the affairs of houses of worship. With the

lifting of the absolute prohibition on political activities comes an invitation to the government to regulate the practices and affairs of

a house of worship.

However, even if, by some stretch of the imagination, one could

conceive that the bills before this Subcommittee today present no

constitutional problems, I would oppose them. I would oppose them

as a pastor who has worked in congregational ministry for more

than 40 years, as well as the Executive Director of a national interfaith organization that values the importance of religious congregations. I can think of few ways to compromise the integrity of religious congregations and to blunt the vitality of religion in our land

more than by the passage of either one of these bills.

First of all, neither the Houses of Worship Political Speech Protection Act nor the Bright-Line Act of 2001 is wanted or needed by

most religious people in this land. A recent Gallup/Interfaith Alliance foundation poll of religious leaders found that 77 percent of

clergy believe they should not endorse political candidates. Of those

participating in this poll, 59 percent identified themselves as

evangelicals. It is ironic that these results show that the very people whom these bills are supposedly intended to empower are people who adamantly resist even the premise on which the bills are

based.

Second, these bills have the potential to compromise religious

leaders’ ministries of compassion and even to silence the prophetic

voice of communities of faith in this land. Passage of either of these

bills would turn pastors, imams, rabbis, and other would-be prophets into political operatives to be lobbied by candidates for public

office and used as endorsers of partisan campaigns.

To saddle religious leaders with the skepticism commonly associated with politics would erode the reverence accorded to religious

offices and leave congregations devoid of clergy functioning with an

39

authority rooted in spirituality. When pulpits, bimahs, and other

sacred desks from which the Scriptures and oral traditions of various religions are read and interpreted become stumps on which

ministers stand to deliver political speeches and hand out political

endorsements, the prophetic voice of the religious community, arguably religion’s most important contribution to this Nation, will be

silenced.

I also have grave concerns about the health of religious congregations. Lifting the absolute ban on politicking is sure to create a rift

between the leadership of a house of worship and the congregants.

A religious leader in a congregation must be able to serve all of the

people in that congregation.

More than once in a single day, I have conducted funerals for

people of competing political persuasions and blessed babies born

to parents who wanted nothing to do with the political process. In

each instance the families involved sought the ministry of a

clergyperson, not a politician. Taking on the role of a political

power broker would jeopardize beyond measure the acceptance and

effectiveness of a minister within a congregation, who must be able

to serve all members of that congregation.

Then there is the issue of money. When people of faith give

money to their congregations as an act of devotion to God, they

should not have to worry about a portion of that money going to

politicians. To turn offerings given in the name of God as acts of

worship into political contributions devoted to the support of partisan politicians is a sacrilege.

Needless to say, people of faith are not monolithic in their political ideology. Passage of this legislation will divide religious communities dramatically and literally reconfigure congregational life

in this Nation.

Supporters of these two bills call for their support under the

guise of assuring freedom for houses of worship. Make no mistake

about it, at this very moment houses of worship are free to endorse

candidates for political offices and to give moneys to those candidates’ campaigns. They just cannot do that politicking with funding that is tax-deductible. Every house of worship is free to forfeit

the privacy of its identity as a spiritual body and to function as a

political entity governed by all of the IRS regulations and State

and Federal laws that apply to political institutions.

Mr. Chairman, I hope that each of these proposed pieces of legislation, which represents as serious a threat to the integrity and vitality of religion in this Nation as it does to the continuation of religious liberties guaranteed by the Constitution, will be stopped at

this moment in this Committee. Thank you.

[The prepared statement of Reverend Gaddy follows:]

Statement of Reverend C. Welton Gaddy, Ph.D., Executive Director,

Interfaith Alliance

Good afternoon Chairman Houghton and members of the Subcommittee on Oversight. I appreciate the opportunity to share with you my concerns about two bills

pending before this committee, H.R. 2357, the Houses of Worship Political Speech

Protection Act and H.R. 2931, the Bright-Line Act of 2001.

Mr. Chairman, I consider myself fortunate to have had the pleasure of working

with you on issues of mutual concern over your long career of service to this nation.

I would be remiss if I did not also acknowledge Congressman John Lewis, who has

40

1Marie B. Morris, ‘‘Bills to Permit Churches to Engage in Campaign Activities,’’ Congressional

Research Service, 15 Nov. 2001. 2 Ibid.

been a good friend to The Interfaith Alliance Foundation through his work of many

years on our Walter Cronkite Faith and Freedom Award Selection Committee.

For those on the Oversight committee whom I have not met, I am the Rev. Dr.

C. Welton Gaddy, and I serve as the executive director of The Interfaith Alliance.

The Interfaith Alliance is a faith-based, non-partisan, grassroots organization dedicated to promoting the positive and healing role of religion in the life of our nation

and challenging those who employ religion to promote intolerance. With more than

150,000 members drawn from over 50 faith traditions, local Alliances in 38 states,

and a national network of religious leaders, The Interfaith Alliance promotes compassion, civility and mutual respect for human dignity in our increasingly diverse

society.

In addition to my role at the Alliance, I also serve as Pastor for Preaching and

Worship at Northminster (Baptist) Church in Monroe, Louisiana.

Mr. Chairman and members of the Committee, The Interfaith Alliance has very

serious concerns about H.R. 2357 and H.R. 2931. Indeed, we are fundamentally opposed to both of these bills that are before you today.

Our analysis of H.R. 2357, the Houses of Worship Political Speech Protection Act,

is in accord with the Congressional Research Service, which has stated that this bill

‘‘would amend IRC Section 501(c)(3) to exempt churches and church auxiliaries from

the absolute prohibition on participation or intervention in a political campaign and

add language, which would measure churches by the same test that is used for all

501(c)(3) organizations; i.e., no substantial part of their activities would be participating in, or intervening in any political campaign on behalf of any candidate for

public office.’’1

In other words, despite the unique place that houses of worship hold in our current tax code, this bill seeks to dismantle the absolute ban on partisan politicking

and allows houses of worship to engage in the mechanisms of partisan politics while

retaining their tax-exempt status and receiving tax-deductible contributions.

H.R. 2931, the Bright-Line Act of 2001, is similar to H.R. 2357 in intent, except

that it would ‘‘add a new subsection to IRC, section 501, applicable to churches,

church auxiliaries and members of an affiliated group of organizations. The proposed subsection would deny tax exemption to a church or church auxiliary if the

organization normally spent more than 20% of its gross revenues in a year on activities to influence legislation or, normally spent more than 5% of its gross revenues

on political campaign activities.’’ 2

Thus, while H.R. 2357 lifts the ban on absolute prohibition of partisan politicking

while leaving the ‘‘no substantial part’’ test up to interpretation, H.R. 2931 lifts the

ban but provides a benchmark for ‘‘no substantial part’’ and specifically includes lobbying activities.

Mr. Chairman, profound constitutional issues are at stake in these two bills. As

a religious leader with a national constituency and as an active Baptist pastor from

Louisiana, I oppose these legislative proposals. Adoption of this legislation would

alter the whole legal landscape of church-state relations in this nation. When I

speak about the possible consequences of these bills, my passion is deep, and my

concern about their negative impact on religion’s prophetic voice in our nation is

real.

Even if by some stretch of the imagination one could conceive that the bills before

this committee today presented no constitutional problems, I would oppose them. As

a pastor who has worked in congregational ministry for more than 40 years as well

as the executive director of a national interfaith organization that values the importance of religious congregations, I shudder to think of the devastation that would

be visited upon the religious community and its leaders were these bills to become

law.

Indeed, I can think of few ways to compromise the integrity of religious congregations and to blunt the vitality of religion in our land more than by the passage of

either one of these bills.

• First, neither the House of Worship Political Speech Protection Act, nor the

Bright-Line Act of 2001 is wanted or needed among most religious people

in this land and the clergy who lead them. Any claim by supporters of these

bills that there is a mainstream movement among this nation’s clergy to rewrite the tax code to allow houses of worship to engage in partisan politicking is simply without foundation.

41

3Dessingue, Deirdre, Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why;

to What End?, 42 B.C.L. Rev 903 (2001).

As a matter of fact, it is far more accurate to say that clergy appreciate the firewall that 501(c)(3) status provides between the inner-sanctuaries of houses of worship and what has unfortunately become the ‘‘anything goes’’ culture of a modern

day political campaign.

This assertion is backed by a recent national Gallup/Interfaith Alliance Foundation poll of religious leaders, which found that 77% of clergy believe that they

should not endorse political candidates. Of those participating in the poll, 59% identified themselves as Evangelicals. It is ironic that these polling results show that

the very people whom these bills are supposedly intended to empower adamantly

resist even the premise on which the bills are based.

I am not suggesting that The Interfaith Alliance believes that clergy and houses

of worship do not have an important role to play in the political process. We believe

that clergy have an absolute right and further, a moral obligation, to address the

crucial issues of the day and to serve the nation as a prophetic voice in times of

calm and crisis.

But clergy do not need a change in the current law to be faithful to this important

responsibility. The ability of clergy to educate their congregations about important

issues of the day is unambiguously legal. The only activities that tax-exempt houses

of worship may not engage in are endorsing or opposing candidates, or using their

tax-exempt donations to contribute to partisan campaigns.

Since the introduction of these bills last year, supporters of these measures have

argued their merit under the guise of assuring freedom for houses of worship. Make

no mistake about it, at this very moment houses of worship are free to endorse candidates for political offices and to give money to those candidates’ campaigns. However, such politicking cannot be done with funding that is tax deductible. Every

house of worship is free to forfeit the primacy of its identity as a spiritual body and

to function as a political entity governed by all of the IRS regulations and state and

federal laws that apply to political institutions.

• Second, these bills have the potential to compromise religious leaders’ ministries of compassion and even to silence the prophetic voice of communities

of faith in this land.

Throughout the history of our nation, religious leaders have provided a perspective of integrity and independence when they speak about the moral issues. Whether it was the civil rights movement of the 1960’s or the importance of forgiving third

world debt in 2000, religious leaders have spoken conscientiously, often in the face

of negative influences and political pressure.

Passage of either of these bills would turn pastors, imams, rabbis and other

would-be prophets into potential political operatives to be lobbied by candidates for

public office and used as endorsers of partisan campaigns. To saddle religious leaders with the controversy and skepticism commonly associated with politics would

erode the reverence accorded to religious offices and leave congregations devoid of

clergy functioning with an authority rooted in spirituality. When pulpits, beemas,

and other sacred desks from which the scriptures and oral traditions of various religions are read and interpreted become stumps on which ministers stand to deliver

political speeches and hand out political endorsements, the prophetic voice of the religious leaders community—arguably religion’s most important contribution to the

nation—will be silenced.

This view is shared by Deirdre Dessingue, associate general counsel of the National Conference of Catholic Bishops who wrote in a July 2001 article that, ‘‘as the

church pursues its religious mission, it is guided by its own unique vision of the

way our society should be. As a God-given vision, it admits of no compromise. Yet

since compromise is the essence of politics, choosing involvement in electoral politics, risks compromise, co-option, and collusion.’’ She concludes by saying, ‘‘a religious message without integrity is no message at all.’’ 3 I could not agree with her

more.

Lifting the ban on politicking is also sure to create a rift between the leadership

of a house of worship and the congregants. A religious leader in a congregation must

be able to serve all of the people in that congregation. More than once, in a single

day, I have conducted funerals for people of competing political persuasions and

blessed babies born to parents who wanted nothing to do with the political process.

In each instance, the families involved sought the ministry of a clergyperson not the

assistance of a politician. Taking on the role of a political power broker would jeopardize beyond measure the acceptance and effectiveness of a minister within a congregation.

42

4 ‘‘Religion Rules as Primaries Approach,’’ Associated Press 3 March 2000.

Knowing well the schismatic passions related to partisan politics, you easily can

imagine a congregant, even in a time of need, refusing to turn for help from a minister whose identity has been shaped by the political endorsements that have become a part of his or her leadership in a congregation. Passage of either one of these

bills threatens the effectiveness of ministers of compassion in religious congregations.

• Third, current law protects the integrity of houses of worship and prevents

government entanglement in the affairs of houses of worship. Churches,

synagogues, temples and mosques should not be used as partisan political

rally halls or as venues for partisan political fundraising activities.

With the lifting of the absolute prohibition on political activities comes an invitation to the government to regulate the practices and affairs of a house of worship.

Surely there will be different interpretations of what constitutes a ‘‘substantial’’ activity, a ‘‘normal year’’ or even, what constitutes an actual partisan activity. Churches should not be in the business of defending their denominational or financial affairs to the government, and indeed, this is precisely the situation the framers of

our Constitution sought to avoid.

• Fourth, when people of faith give money to their congregations as an act

of devotion to God, they should not have to worry about a portion of that

money going to politicians. The fact is that members of religious congregations will not make financial contributions to a congregational budget

knowing that a part of their financial support for the ministries of that

house of worship will end up in the campaign war chest of a political candidate seeking help in winning an election. To turn offerings given in the

name of God as acts of worship into political contributions devoted to the

support of partisan politicians is a sacrilege.

People of faith are not monolithic in their political ideology. Passage of this legislation will divide religious communities dramatically and literally reconfigure congregational life in this nation. Religious people will realign themselves in congregations that reflect their respective political positions. What conscientious religious

person would want to be a faithful member of a congregation that supports a candidate for office that the person opposes on the basis of conscience?

We do not want to see houses of worship identified more by the political parties that

they support than by the theology or the moral values that they proclaim.

In the 2000 election, specifically in South Carolina, Michigan, and Washington,

we saw the sad spectacle of candidates for public office highlighting theological differences between congregations in an attempt to divide congregations for the purpose of dividing the electorate and propelling voters to the polls. In Washington,

Senator John McCain’s campaign took responsibility for sending the following statement to primary voters by telephone:

‘‘This is a Catholic Voter Alert. Gov. George Bush, Jr. has campaigned against

Sen. John McCain by seeking the support of Southern Fundamentalists who

have expressed anti-Catholic views. Several weeks ago Gov. Bush spoke at Bob

Jones University in South Carolina. That’s the same Bob Jones who said the

Pope was ‘‘the antichrist’’ and called the Church ‘a satanic cult.’ Sen. John

McCain has strongly criticized this anti-Catholic bigotry, while Gov. Bush stayed

silent while gaining the support of Bob Jones University. For this reason, many

Washington Catholics now support John McCain for President. Please vote for

John McCain. Thank you.’’ 4

Not to be outdone, then Christian Coalition President Pat Robertson sponsored

automated phone calls to voters prior to the Michigan Republican primary in support of then Governor Bush criticizing Senator McCain’s record on abortion, and

calling his campaign chairman, Senator Warren Rudman, a ‘‘bigot’’ for criticizing

Christian conservatives. In this scenario, religion was used as a political football,

and it truly was unfortunate.

• Finally, passage of these bills would open a dramatic new loophole in the

campaign finance laws just passed by this Congress. Donations to houses

of worship are tax-deductible because the government assumes that their

much-needed work is contributing to the common good of society, not a political party or a partisan campaign.

Contributions to churches are tax deductible while donations to political candidates and parties are not. Therefore, these bills would create an exemption in our

43

national campaign finance laws. Political contributions that legally could not be

made to candidates or their parties could legally be channeled through the offerings

of a house of worship. Houses of worship will find themselves giving tax-deductible

dollars to politicians at the expense of the general public. All of this will happen

under the banner of faith. This is just not right.

Mr. Chairman and members of the committee, I must be honest with you. When

I first heard of legislative proposals that would blatantly politicize houses of worship, I couldn’t believe my ears and thought someone was playing a practical joke

on me. 114 co-sponsors later, I now know better. Each of these proposed pieces of

legislation represents as serious a threat to the integrity and vitality of religion in

this nation as it does to the continuation of religious liberty as guaranteed by the

constitution. The bills are no joke. And I am not laughing. I come here today to

Chairman Houghton. Reverend Fauntroy.

plead with members of this committee to not allow these bills to go any further.

Chairman HOUGHTON. Thank you very much, Dr. Gaddy.

f STATEMENT OF HON. REVEREND WALTER E. FAUNTROY, PASTOR, NEW BETHEL BAPTIST CHURCH, AND FORMER MEMBER OF CONGRESS

Reverend FAUNTROY. Chairman Houghton and Members of the

Subcommittee, my name is Walter Fauntroy. I am an experienced

politician and a well-trained Minister. I am in my 43rd year as

Pastor of New Bethel Baptist Church here in our Nation’s Capital.

Over the course of those years, I have had the privilege of being

at the core of every major change in public policy affecting people

of African descent in this country.

In the decade of the sixties, I served as Director of the Washington Bureau of Dr. Martin Luther King, Jr.’s Southern Christian

Leadership Conference, and in that capacity I coordinated our activities for both the historic march on Washington in 1963 and the

voting rights march from Selma-Montgomery in 1965.

I was Dr. King’s chief lobbyist for the passage of the Civil Rights

Act of 1964 and the Voting Rights Act 1965. In the decades of the

seventies and eighties, I served as a Member of this august body

as the District of Columbia’s first Delegate to the Congress in 200

years, and during my 20-year tenure as a Member of the House

Banking, Finance, and Urban Affairs Committee of the House, I

had the privilege of being Chairman of the Subcommittee on Domestic Monetary Policy, which oversaw our participation through

the Federal Reserve, the quasi-public Federal Reserve Board, on

the distribution and management of money in the country. Then I

served as Subcommittee Chairman on the Subcommittee on International Development, Finance, Trade, and Monetary Policy.

I do not want you to think as a Minister I believe money is everything, but I have learned it is so far ahead of whatever is second

best when it comes to declaring good news to the least of these that

we have to manage to see to it that it happens.

What I have learned as a Pastor, as a civil rights activist, and

as a Member of Congress over these years has led me to appear

before you today in support of H.R. 2357, the Houses of Worship

Political action Protection Act. In the 5 minutes allowed me, I want

to share with you two definitions of politics upon which I have

acted over these years as Pastor, as a civil rights activist, and as

a Member of Congress.

44

The first definition is that politics is the means by which we in

a democracy translate what we believe into public policy and practice. That is, we go to the polls and vote for people who, if elected,

promise to translate what we believe into public policy and practice.

That right to vote is so precious to me because, as an African

American, I am painfully aware of how racist white voters in the

Southland, by denying my people the right to vote, were able to

translate what they believed into public policy and practice. They

believed that black people, for example, should not be allowed to

drink water from the same public fountains used by white people,

and they translated that into public policy and practice.

Now, the second definition of politics upon which I have always

relied is that politics is the process of determining who gets how

much of what, when, and where, in five areas: Who gets how much

income, who gets how much education, who gets how much health

care, housing, and justice?

In fact, during my 20-year tenure in this Congress, I became

thoroughly conversant with our Nation’s 14 Cabinet-level agencies

and their counterparts in the standing Committees of the U.S.

House and Senate that determined who gets how much of what,

when, and where in agriculture, in commerce, in labor, in housing,

in health and human services. That is what I have learned as a

politician.

Let me tell you what I have learned as a thoroughly trained Pastor. I have learned from the prophet Isaiah that the basic tenet of

our Judeo-Christian-Muslim heritage is that we are ‘‘anointed of

God to declare good news to the poor, to bind up the broken-hearted, and to set at liberty them that are bound.’’ You can understand, therefore, that as a citizen who has a right

to vote, to translate what he believes into public policy and practice, and as a man of faith who is anointed to declare good news

in terms of access to income, education, health care, housing, and

justice to the least of these, I have never and I will never allow

anyone to deny me the right to vote my beliefs at the polls. I have

not and I will not allow anyone to deny me the right to try to persuade as many people as I can to vote good news for the poor.

We enter our houses to worship, and we depart to serve. If we

are to serve, the question will not be whether you are Baptist or

white or black or Muslim or Jew or atheist. The question is, when

I was hungry, did you feed me?

In my view, therefore, there is no election, local, State, or national, where I think the plight of the least of these is at stake that

I do not endorse a candidate of my choice to the Members of my

church and try to influence them to vote the values that we embrace as serious people of faith. That is my right, both as a citizen

and as a man of faith, and I will defend that right, even for those

people of faith with whom I vehemently disagree on how income,

education, health care, and housing should be distributed.

Now, I must tell you that it is not in my best interests nor is

it in the interests of the people I serve that certain people who call

themselves religious benefit from the passage of this bill. That is

because it has been my experience that people often use religion

and race as an excuse to deny others the income, education, health

45

care, and housing and justice that they covet for themselves. And

that is what we define as sin, the arrogance and self-seeking of

many. Mr. Chairman, take it from someone who knows: People who

call themselves religious, when it comes to their greed and opportunism, will often talk east and walk west on matters of public

policies. They say one thing and do another. Jesus called such people false prophets who come to you in sheep’s clothing, and yet in

their hearts are ravenous wolves.

Ku Klux Klansmen are false prophets who use Christianity as an

excuse to deny black people and other minorities access to those

five things. Muslim extremists, like Osama bin Laden, are false

prophets who use Islam as an excuse to kill other people, to deny

them access to those five things, and in the process, they distort

Islam, and they blaspheme Allah. Jewish extremists are false

prophets who use Judaism as an excuse to take from others what

they have coveted for themselves. They all come up with cute excuses for their ungodly actions, but they are not correct. They may

appear to be sincere, but they are sincerely wrong.

The right thing for all Jews, all Christians, all Muslims, and all

people who are of good will in this country to do is recorded in

Micah, the Sixth chapter, and all agree with it because it is in their

literature: He hath shown thee, O man, what is good; and what

doth the Lord require of thee, but to do three things, to do justice,

and to love mercy, and to walk humbly with thy God. Don’t just

talk the talk, walk the walk to the polls.

Mr. Chairman, I know it is not in my interest nor the people

whom I serve that everybody who calls themselves religious be able

to do what I do in my pulpit. But like Voltaire, I may disagree with

them vehemently, but I will defend to the death their right to be

wrong and their right to participate in an orderly effort that democracy afforced us to translate what we believe into public policy

and practice.

I support this because I must not be selfish and, therefore, sinful.

I must not demand for myself what I would deny others. I believe

that he who would save his life shall lose it, and he that will lose

his life for my sake will find it. That is why I support this bill.

[The prepared statement of Reverend Fauntroy follows:]

Statement of the Hon. Reverend Walter E. Fauntroy, Pastor, New Bethel

Baptist Church, and Former Member of Congress

Chairman Houghton and members of committee, my name Walter E. Fauntroy.

I am in my forty-third (43rd) year as pastor of the New Bethel Baptist Church here

in our nation’s capital. Over the course of those years, I have had the privilege of

being at the core of nearly every major change in public policy in this country affecting people of African descent.

In the decade of the 1960s I served as Director of the Washington Bureau of Dr.

Martin Luther King, Jr.’s Southern Christian Leadership Conference. In that capacity I coordinated our activities for both the Historic March on Washington in 1963

and the Selma-To-Montgomery Voting Rights March of 1965. I was Dr. King’s chief

lobbyist for passage of the Civil Rights Act of 1964 and the Voting Rights Act of

1965.

In the decades of the 1970s and ’80s I served as a member of this august body

as the District of Columbia’s first Delegate to the U.S. House of Representatives in

100 years. During my twenty year tenure as a member of the House Banking, Finance, and Urban Affairs Committee, I had the great privilege of being chairman

of the subcommittee on Domestic Monetary Policy and then the subcommittee on

International Development, Finance, Trade and Monetary Policy.

46

What I have learned as a pastor, civil rights activist and member of congress over

these years has led me to appear before you today in support of H.R. 2357, the

Houses of Worship Political Speech Protection Act. In the five minutes allowed me,

I want to share with you two definitions of ‘‘politics’’ upon which I have acted over

these years as a pastor, as a civil rights activist and as a politician that inform my

decision to support this legislation.

The first definition is this: ‘‘Politics is the means by which we in a democracy

translate what we believe into public policy and practice;’’ that is, we go to

the polls to vote for people who, when elected, promise to translate what we believe

into public policy and practice. That right to vote is so precious to me because, as

an African American, I am painfully aware how racist white voters in the Southland, by denying my people the right to vote, were able to translate into public policy and practice what they believed. They believed that black people, for example,

should not be allowed to drink water from the same public fountains used by white

people; and with their votes, they translated that into public policy and practice.

A second definition of politics upon which I have always acted is that ‘‘Politics

in the process by which we determine who gets how much of what, when and

where in five areas: income, education, healthcare, housing and justice.’’ In

fact, during my twenty year tenure in this congress, I became thoroughly conversant

with our nation’s fourteen cabinet level agencies and their counterparts in the

standing committees of the U.S. House and Senate, agencies and committees that

determine who gets how much and what, when and where in agriculture, in commerce, in labor and housing and health and human services, for example. That’s

what I have learned as a politician.

Let me tell you what I have learned as a thoroughly trained pastor. I have

learned from the Prophet Isaiah that the basic tenet of my Judeo-Christian-Muslim

heritage is that we are all ‘‘anointed of God to declare good news to the poor,

to bind up the broken hearted and to set at liberty them that are bound’’

(Isaiah 61:1). You can understand, therefore, that as a citizen who has a right to

vote to translate what he believes into public policy and practice and as a man

whose faith dictates that he seek to provide ‘‘the least of these’’ access to adequate

income, education, healthcare, housing and justice, I never have and I never will

allow any one to deny me that right to vote my beliefs at the polls. I have not and

I will not allow any one deny me my right to try to persuade as many fellow citizens

as I can reach to vote as I do.

There is, therefore, no election—local, state or national—where I think that the

plight of the ‘‘least of these’’ is at stake that I do not endorse a candidate of my

choice in an effort to influence the members of my congregation and any one else

who I think values my opinion on matters of public policy. That is my right both

as a citizen and a man of faith, and I will defend that right even for those people

of faith with whom I vehemently disagree as to how income, education, healthcare,

housing and justice should be distributed in our society.

Now I must also tell you that it is not in my interest nor is it in the interest of

the people whom I serve that certain people who call themselves ‘‘religious’’ benefit

from the passage of HR 2357. That’s because it has been my experience that people

often use religion and race as excuses for denying to others the income, education,

healthcare, housing and justice that they covet for themselves. In our Judeo-Christian-Muslim heritage we call that ‘‘sin’’ which, defined, is the arrogance and selfseeking of man.

Mr. Chairman and members of the committee, take it from someone who knows,

people who call themselves religious, when it comes to their greed and opportunism,

will often talk East and walk West on you in the arena of public policy. They say

one thing and they do another. Jesus called such people ‘‘false prophets who come

to you in sheep’s clothing, but inwardly they are ravening wolves’’ (Matt.

7:15). Ku Klux Klansmen are false prophets who use Christianity as an excuse to

deny black people access to income, education, healthcare, housing and justice. Muslim extremists like Osama Bin Laden are false prophets who use Islam as an excuse

to kill other people to deny them access to income, education, health care housing

and justice. In so doing, they distort Islam and blaspheme the name of Allah. Zionists extremist are false prophets who use Judaism as an excuse to take from others

what they covet for themselves: income, education, healthcare, housing, and justice.

They all come up with cute excuses for their ungodly actions but they are not correct. They appear to be sincere but they are sincerely wrong. The right thing for

all Jews, all Christians and all Muslims to do is recorded in their own holy writ

in the words of Micah 6:8—‘‘He hath shown thee O man, what is good; and

what doth the Lord require of thee, but to do justly, and to love mercy, and

to walk humbly with thy God?’’

47

So, Mr. Chairman, I know that it is not in my interest or that of the people whom

I serve that certain people who are self-centered hypocrites when it comes to the

basic tenets of their religions exercise their right to be wrong. But like Voltaire, I

may disagree with them vehemently, but I will defend to the death their right to

be wrong and their right to participate in an orderly effort to ‘‘translate what they

believe into public policy and practice.’’ I must not be selfish and, therefore, sinful;

I must not demand for myself what I would deny others. I believe that he who

would ‘‘save his life, shall lose it; and he that loses his life for my sake shall

find it.’’(Matthew 10:39)

have you here. Reverend Lynn?

I support the passage of H.R. 2357. Thank you.

Chairman HOUGHTON. Thank you very much, Walter. Great to

f STATEMENT OF REVEREND BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE

Reverend LYNN. Thank you very much.

Mr. Chairman and Members of the Subcommittee, my name is

Barry Lynn. I serve as the Executive Director of Americans United

for Separation of Church and State. I am also an ordained Minister

in the United Church of Christ, and an attorney, and I have had

a long interest in the issues that we are discussing here today.

America’s policy of separating religion and government has given

us here in the United States more religious freedom than any Nation in the history of the world. When it comes to the relationship

between houses of worship and politics, we had struck, in our view,

precisely the right balance, creating an environment that works to

the benefit of all religious organizations, their Members, and our

democracy. We change it at our peril.

The bills before you would scrap a time-tested system and substitute a reckless experiment in mixing religion with partisan politics. Make no mistake, these bills are not about free speech; instead, they would promote the corruption of the church and the corruption of the political process.

No freedom of speech of any American pastor, priest, imam, or

rabbi is endangered today by the United States Tax Code. Religious

leaders are as free today as any time in American history to expose

moral evils, to propose ethical solutions, and to hold our leaders to

the highest standards. In fact, the only thing that our tax laws prohibit is use of resources or personnel of a tax-exempt group to promote the campaigns of specific candidates for public office. Frankly,

this is a small price to pay for the enormous dual benefit of an organizational tax exemption and the right of contributors to gain a

tax deduction for their contributions.

Pastors are not gagged, churches are not shuttered by the fear

of the IRS. This is a nonsensical caricature by those who are trying

to scare religious leaders by misrepresenting current law.

So if these proposals are not about free speech, and America’s religious leaders already enjoy the right to speak out on the moral

issues of the day, then what precisely are these bills about? Let me

be blunt. I believe it is simple. There are television preachers and

special interest groups who would like to turn America’s churches

into a powerful political machine. They would also like to undermine the principles of separation of church and State.

48

Lawyers for Pat Robertson are out here, including on this panel,

pushing this legislation. Dr. D. James Kennedy, also here today to

express support for the bill, has repeatedly said that he believes

church-State separation is, in his words, a lie, and that he wants

to reclaim America for Christ. If these activists are politically successful, in part by passing these bills, the consequences would be

devastating for the Nation’s tradition of religious pluralism and

genuine religious freedom.

For example, these bills would allow money to go straight from

the collection plate of a church to buying campaign bumper stickers

or attack ads for someone’s favorite politician. That is a vision that

is to me as morally repugnant as it is politically unhealthy.

Moreover, these bills would actually create an unlevel

playingfield in which religious groups get special rights to endorse

candidates while thousands of secular charities, from the American

Cancer Society to the Red Cross to the local birdwatching group,

are still denied that power. Such a special privilege for religious

groups over secular ones is, without question, an unconstitutional

promotion of religion under the first amendment to the Constitution.

But the legislation does more. It opens a Pandora’s box of new

opportunities for mischief through abuse of the Nation’s campaign

finance system. Supporters of a candidate could make tax-deductible contributions to a church, and the church could then use an

equivalent amount on behalf of that donor’s favorite candidate.

The motive could be crass, an effort to curry favor with politicians for future gain, or it might well be quite noble, a well-intentioned effort to fund those leaders who are deemed morally superior. But frankly, either way, this amounts to nothing short of clerical money-laundering, and it is wrong to introduce it into this system.

According to a poll this year, 70 percent of Americans disapprove

of the idea of churches endorsing political candidates, and little

wonder. Most parishioners want the church board to debate expenditures on aid to the homeless and hungry in their communities, not wrangle over which politicians will be favored with the

grace of 5 percent or 10 percent of the revenues from the collection

plate. Few pastors themselves even want to serve their flocks as

both a spiritual leader and a political boss.

The practical magnitude of these bills is staggering. They would

permit some denominations to spend literally $1 million a year or

more on electioneering. We should not try to add churches to the

dazzling array of other organizations that can be formed to campaign for political leaders.

The moral authority of the church has always been highest when

it played no partisan favorites and spoke its truth to government

without fear of reprisal or the specter of special privilege. A taint,

a deep taint, grows on that prophetic voice when there is even the

appearance of buying favor with political leaders by any mechanism, from a sermon endorsement to a cash transfer.

Ultimately, these proposals to change Federal tax law offer a solution to a problem that does not exist. These bills would create a

so-called ‘‘benefit’’ that America’s religious community does not

49

need, does not want, and has not even requested. I therefore urge

this Subcommittee to reject both of these proposals.

[The prepared statement of Reverend Lynn follows:]

Statement of Reverend Barry W. Lynn, Executive Director, Americans

United for Separation of Church and State

Mr. Chairman and Members of the Subcommittee On Oversight:

My name is Barry W. Lynn. I serve as executive director of Americans United for

Separation of Church and State, a 53-year-old watchdog organization created to protect religious liberty. The organization is concerned about protecting the twin guarantees of religious freedom in the First Amendment: prohibiting governments from

encroaching on the free exercise of religion and prohibiting government promotion

of some religions over others or of religion over non-religion. I am an ordained minister in the United Church of Christ as well as an attorney.

I appear today in strong opposition to several proposals to allow tax-exempt religious organizations to engage in partisan political activities. In my view, both H.R.

2357 (‘‘Houses of Worship Political Speech Protection Act’’) and H.R. 2931 (‘‘BrightLine Act’’) run afoul of sound public policy and the United States Constitution. Far

from merely clarifying the rights of religious institutions, these bills would grant

special rights to certain religious groups not given to similarly situated secular

groups and would deeply politicize America’s churches, synagogues, temples and

mosques.

Current tax law exempts certain organizations from taxation, including those organized and operated for religious purposes, provided that they do not ‘‘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.’’ 26

U.S.C. § 501 (a), (c)(3) (1994). This levelheaded policy works perfectly for all concerned: Tax-exempt religious institutions are not used or manipulated for partisan

political purposes, and religious leaders remain free to speak out on moral and ethical issues of the day.

This harmony would be dramatically altered by enactment of either of the aforementioned bills. H.R. 2357 would allow institutions described in section 508 (c)(1)(a)

[‘‘churches, integrated auxiliaries, and conventions or association of churches’’] to

engage in partisan activities so long as ‘‘no substantial part’’ of their activities would

constitute intervention in political campaigns. H.R. 2931 would permit intervention

in campaigns so long as the expenditures did not exceed five percent of the organization’s gross revenues for the year.

The prohibition against partisan political intervention which exists today applies

equally to both churches and other secular charities that claim tax-exempt status.

There is absolutely no Supreme Court authority under either the ‘‘free exercise of

religion’’ or ‘‘free speech’’ provisions of the First Amendment that even remotely suggests that churches are entitled to exemption from tax law requirements that apply

to all similarly situated groups. Therefore, both pieces of legislation raise important

constitutional questions of equal protection of the law and violation of the Establishment Clause, that principle of constitutional jurisprudence that holds that government cannot favor religion over non-religion.

Perhaps the closest analogy to the kind of policy embraced in the proposals is the

Supreme Court decision in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989). There,

the state of Texas had created an exemption for sales tax on religious publications,

including periodicals and books containing sacred texts. The publishers of Texas

Monthly, a secular magazine, challenged this disparate treatment favoring religion

and prevailed. The Court noted: ‘‘It is difficult to view Texas’ narrow exception as

anything but state sponsorship of religious belief. . .’’ Id. at 15.

Accordingly, should either proposal before you be enacted, any non-religious

501(c)(3) organization, still required to maintain a position of no endorsement of

candidates, would be able to allege that the special treatment of religious groups

violated the Establishment Clause. Giving preferential treatment to churches, a status not accorded the scores of other charitable, non-profit groups is a giant step in

the wrong direction.

Just one year after the Texas Monthly decision, the Supreme Court made clear

that a state can decline to exempt churches from a generally-applicable sales tax,

because religious activity is not ‘‘being singled out for special and burdensome treatment.’’ Jimmy Swaggart Ministries v. California Board of Equalization, 493 U.S. 378

(1990). In Christian Echoes National Ministry v. United States, 470 F.2d 849 (10th

Cir. 1972), cert. denied, 414 U.S. 864 (1973), the appeals court ruled that Section

501(c)(3)’s prohibition against political activities may be applied to churches in the

50

* Current law permits most charities (churches were omitted at their request) to choose between not spending a ‘‘substantial’’ amount of their revenues on lobbying or spending no more than 20% of their first $500,000 in revenue and a declining percentage of additional revenue

up to a total expenditure of $1,000,000 on lobbying (the latter is referred to as the ‘‘[h] election’’).

The ‘‘[h] election’’ is often referred to as a ‘‘safe harbor’’, a guarantee that a charity does not

risk its tax exemption if it spends no more than the articulated limits. The risk of non-election

is that the Internal Revenue Service could reach its own decision on what constitutes an amount

of lobbying so ‘‘substantial’’ that it could lead to revocation of tax-exempt status. See, for example, Haswell v. United States, 500 F.2d 1133 (Ct. Cl. 1974)(allocation of 20.5% of total expenditures for influencing legislation was ‘‘substantial’’, but that ‘‘a percentage test is not determinative of substantiality’’ but is ‘‘one measure of the relative significance’’ of an activity);

Seasongood v. Commissioner of Internal Revenue, 227F.2d 907 (6th Cir. 1955) (5% of organization’s time devoted to influencing legislation found not substantial). Under H.R. 2357, a church

could reasonably argue that 20% or less of expenditures is no ‘‘substantial’’.

same manner as to other charities. Indeed, an appeals court upheld the revocation

of tax exemption for a New York church’s participation in a political campaign to

defeat Bill Clinton finding no significant burden on the right to freely exercise the

religious beliefs proscribed by the faith. Branch Ministries v. Rossotti, 211 F.3d 137

(D.C. Cir. 2000). Taken together, these cases demonstrate there is no serious constitutional claim that taxing authorities must, or can, treat religious groups differently from other charities.

The practical implications of these bills would be staggering. Anywhere from 5%

to 20% of a church’s revenues could go for partisan activities. There are many

churches and related organizations with multi-million dollar budgets. A typical socalled ‘‘mega-church’’ with a $2 million budget under H.R. 2931 could contribute

$100,000 to partisan campaigns. Under H.R. 2357, that same church could send

$225,000 to favored politicians. * If the Southern Baptist Convention or the Unification Church’s entire budget was taken into account, such entities could spend over

$1 million dollars on electioneering.

It is also worth noting that the Congress passed, and President Bush recently

signed, a major overhaul of the campaign finance system. Although some have questioned the constitutionality of that proposal, enactment of the bills under consideration here would open another enormous loophole in a system already viewed as

Byzantine and inequitable.

Houses of worship are awarded tax-exempt status because the government assumes that their work is charitable and educational, not political. To undo the restriction on church electioneering—allowing religious groups to act as political

operatives while maintaining their tax-exempt status—creates a loophole that would

allow contributors to make tax-exempt contributions to a church with knowledge

that the money would benefit a favored candidate.

Throughout the nation, neither church leaders nor their parishioners are clamoring for this bill. A recent survey by the Pew Forum on Religion and Public Life

found that 70 percent of respondents said churches should not endorse political candidates, while only 22 percent backed church involvement in campaigns.

A closer look at the Pew Forum’s results show that church politicking was unpopular among all tested demographic groups. For example, the report indicates

that Catholics and mainline Protestants—regardless of their level of religious commitment—disapproved of church political endorsements by more than a three-to-one

margin.

Similarly, pastors are not seeking the ‘‘help’’ these bills offer. Most clergy now

strictly adhere to the law as it is written regarding candidate activity in their

church and are not interested in turning their religious institutions into cogs in

someone’s political machine. This is a bad move for the church and for the integrity

of the political process.

Many persons with whom I have only rare agreement have nevertheless expressed

strong reservations on the proposals before you. Cal Thomas, the most widely syndicated columnist in the country, wrote in questioning these bills that ‘‘more politicians would be free to come to churches, taking time away from preaching about

a kingdom not of this world in favor of earthly salvation.’’

Fox News Channel host Bill O’Reilly told me on air that he agreed with me and

informed Rep. Walter Jones several nights later that: ‘‘I don’t want the churches involved in the political process.’’ It is little wonder. The moral authority of the church

has always been highest when it played no partisan favorites and spoke its truth

to the governing order without the fear of reprisal or the specter of special privilege

from the powerful.

That taint grows whenever there is even the appearance of ‘‘buying’’ favor with

political figures with the financial resources of the church: whether that is a sermon

51

endorsement or an elaborate transfer of cash from church treasury to a party or a

candidate fund.

I am not naı ̈ve enough to ignore the fact that these bills are directly related to

one of the highly visible projects of Americans United for Separation of Church and

State, an effort we call ‘‘Project Fair Play.’’ Our program is a strictly non-partisan

citizen effort educate about existing legal strictures against partisan activity by any

institutions that are tax-exempt under Section 501(c)(3) of the Internal Revenue

Code.

‘‘Project Fair Play’’ consists of several activities. First, we have produced, or have

retained outside counsel to produce, a number of legal and practical memoranda and

pamphlets to let churches know of the current law regarding participation in political activities. Although these documents do warn of violating prohibitions against

intervention in campaigns, they also frequently detail the large number of perfectly

permissible ‘‘political’’ activities that churches can engage in that inform community

members about important issues and candidates seeking political office, but that fall

short of utilizing the resources of the church to promote some specific candidates

over others. For example, a church may host a ‘‘candidate forum’’ in their facility

so long as they invite all candidates to appear. It is not the church’s fault if some

choose not to do so. Churches can also discuss the vital moral issues of the day and

even endorse or oppose legislation, subject only to the far less restrictive language

regarding lobbying contained in the Tax Code.

Second, though, when flagrant violations of the principle of non-participation in

political campaigns are brought to our attention, we have (on 38 occasions) sent a

letter to the Internal Revenue Service detailing our reasons for believing that a

church has violated the provision prohibiting intervention in campaigns and should

be investigated and penalized where appropriate. These letters are generally accompanied by additional evidence, from affidavits of church members to newspaper accounts, to demonstrate why we believe the entity has crossed a forbidden line. The

activities we have reported have ranged from a $44,000 church-sponsored advertisement in a major newspaper urging the defeat of a Presidential candidate, distribution of highly slanted ‘‘voter guides’’ by political party members in church, direct

pulpit endorsements, and collection of funds in Buddhist temples. In a few cases,

we know that the complaints have led to enforcement actions by the Internal Revenue Service. However, unless an institution challenges a penalty in court or discusses it in the media, we do not know, nor are we entitled to know, the disposition

of these complaints.

According to the chief sponsor of H.R. 2357, Representative Walter Jones of North

Carolina, his legislation was born from anger over a letter we sent to nearly 300,000

houses of worship nationwide in 2000 outlining federal tax law and urging that

churches seek their own legal counsel before passing out materials such as ‘‘voters’

guides’’ of the Christian Coalition. Apparently a copy of this letter went to ‘‘a fundamentalist Baptist minister’’ in his district who was ‘‘stunned—that he could lose

his status by just saying, ‘Bush is pro-life, Gore is pro-choice.’ ’’ (Actually, it is not

clear that any church could lose its tax exemption based on that statement alone.)

These comments obviously do not reflect the only reasons sponsors have for wanting to enact legislation on this matter. However, the comments about our work are

based on two completely erroneous and unsubstantiated claims that have been repeated in dozens of press conferences and media appearances. I would like to set

the record straight.

First, these bills are not necessary because pastors feel unable to speak to the

moral issues of the day. It is a ‘‘red herring’’ of considerable dimension to allege that

pastors, priests, rabbis, or imams are having their speech ‘‘stifled.’’ Regrettably, this

is the kind of misleading position staked out by Congressman Jones in a recent letter to the Washington Times (2/24/2002): ‘‘Houses of worship have always, since the

Founding, spoken out on issues of the day. Simply because politicians also debate

those issues—from abortion to the death penalty—churches are now required to be

quiet because to speak out during an election cycle threatens government sanction

and the loss of tax exemption.’’ In fact, speaking out on issues is virtually unregulated by the Tax Code. No church has ever been penalized under the lobbying restriction in the Code for making moral statements on any topic. In fact, to suggest

otherwise is to create the very chilling effect our letters supposedly generate. It is

quite easy to talk about issues, stake out ethical positions, ask your congregation

to seek out political leaders who adhere to those positions—all without endorsing

a specific party or candidate with the resources of your church. The one and only

thing the valuable tax exemption requires you to give up is the right to endorse candidates; it is no different from the requirements that any 501(c)(3), religious or secular, would have to follow. The church on the corner is no different from the Red

Cross or Americans United for Separation of Church and State.

52

The proponents of this legislation also continue to perpetuate the myth that either

Americans United or the Internal Revenue Service or both of us is only concerned

about the activities of conservative churches and religious institutions. This is demonstrably false. Indeed our first interest in this matter was the effort of the Reverend Jesse Jackson to hold a ‘‘Super Sunday’’ fundraising effort for his 1988 presidential bid by having African-American congregations take up collections for his primary bid right during church services. We alerted the IRS to this planned activity

and through the help of an ‘‘open letter’’ generated a spate of adverse activity that

caused Mr. Jackson to back off. In other significant cases, we have reported the alleged fundraising in the Hsi Lai Buddhist Temple on behalf of the Democratic Party

and Al Gore, the Democratic Primary endorsement of the candidacy of Al Gore over

Bill Bradley by the Reverend Floyd Flake of New York (which he conceded led to

an agreement with the IRS not to engage in similar activity in the future), and most

recently the in-church electioneering permitted on behalf of a Democratic candidate

for sheriff in Wake County, North Carolina.

Obviously, we have also pointed out the potentially unlawful conduct of churches

seeking to provide aid to Republican candidates, including the pulpit endorsement

immediately before an election of a former Congresswoman from Idaho was, among

other things, extolled as ‘‘a prophet for our nation,’’ the distribution of Christian Coalition voter guides in Idaho by the chairman of the local Republican Party (who

was either very benevolent in passing out a wholly ‘‘objective’’ document or was

seeking to promote the candidacies of the Republican candidates all obviously favored in the ‘‘voter guide’’), and a pastor, speaking on behalf of his Philadelphia congregation, who endorsed GOP presidential candidate George W. Bush from his pulpit, while being broadcast via satellite to the Republican National Convention. Independent candidacies have also been the subject of complaints. We submitted material regarding what we considered the endorsement of Howard Philips of the U.S.

Taxpayer Party in the presidential race of 1996 by a religious anti-abortion group

called the American Life League, as well as a Pennsylvania’s church endorsement

of specific candidates in a non-partisan school board race.

When all is said and done, as a matter of tax policy and constitutional law, I believe it will be a sad day in America when her houses of worship begin to descend

into the political fundraising world. Of course, some argue that if the church is uneasy with partisan politicking, it can just forego it. That may be easier said than

done. If parishioners see the church across the street doling out dollars for politicians and then (quid pro quo or merely the appearance thereof) getting money

under programs like the president’s ‘‘faith based initiative,’’ there will be strong

pressure on church leaders to craft similar ‘‘arrangements.’’ Churchgoers should be

able to assume that their $20 bill in the collection plate will be used for the ministry

and not shunted off to attack ads or political bumper stickers. If not, they might

just let the collection plate pass by empty.

In all candor, the bills before you are unconstitutional, unnecessary, and

unhealthy for both the church and the political process. I urge that they be rejected.

Thank you for this opportunity to be included in this hearing.

ADDENDUM

I am writing to expand on some of the statements in my written testimony of May

14, 2002 concerning the interaction of Rep. Walter Jones’ H.R. 2357 and Rep. Phil

Crane’s H.R. 2931 with the campaign finance laws, especially the Bipartisan Campaign Reform Act of 2002, which will go into effect after the upcoming election cycle.

There are several ways in which the contributions of church parishioners could

be used for political activity. The most direct way would be for a church to open

a political action committee (PAC) bank account for contributions, and follow relevant individual contribution caps and FEC reporting requirements for PACs. When

soliciting political funds, the church would have to make clear to individual

congregants contributing to the collection plate that a specific portion of their contribution will go to the PAC fund for political activity. The church would not be able

to simply transfer money from the general treasury to the PAC bank account—the

church must ensure that all PAC money came from individual contributions, and

not from the church bake sale or spaghetti dinner. The church should also instruct

congregants not to treat contributions that may be used for political purposes as tax

deductible, because the IRS will likely treat these church PAC accounts as § 527 accounts, contributions to which cannot be tax deductible. However, the church will

retain its tax-exempt status for other activities.

53

Allowing 501(c)(3) religious organizations to operate PAC operations is just one

of many ways that the Jones and Crane bills open new loopholes in the nation’s

campaign finance system.

In addition to diverting collection plate funds to candidates, the PAC funds of unincorporated houses of worship could be used for other express advocacy activities,

such as print and broadcast attack ads against candidates sponsored by the church

PAC account. And it is clear that H.R. 2357 and H.R. 2931 would open the door

to houses of worship engaging in partisan political activity through slanted ‘‘issue

advocacy’’ advertisements. An example of an ‘‘issue advocacy’’ ad would be a negative message targeted at Congressman X followed by a request to ‘‘call Congressman

X’’ and tell him you are outraged by his record. In addition to print and broadcast

advertisements, the Jones and Crane bills would allow houses of worship to engage

in direct mail, push polling and voter guides with the same negative partisan political message. However, assuming the new campaign finance law takes effect, these

messages may be restricted 30 days before a primary and 60 days before a general

election.

The bottom line is that the Jones and Crane bills would open outrageous new

loopholes in the campaign finance system. And more disturbingly, H.R. 2357 and

H.R. 2931 would be a corrupting influence on our nation

f ’s houses of worship.

Chairman HOUGHTON. Thanks very much, Reverend Lynn. Dr.

Kennedy.

STATEMENT OF D. JAMES KENNEDY, PH.D., PRESIDENT,

CORAL RIDGE MINISTRIES, FORT LAUDERDALE, FLORIDA

Reverend KENNEDY. Thank you. Mr. Chairman, and ladies and

gentlemen, it is a pleasure for me to be here to have an opportunity

to speak to you, especially after what I have just been listening to.

I hardly recognized the Nation that we are talking about in a previous discussion. It is certainly nothing that I would be in favor of.

May we simply remind ourselves of the history of this matter. Up

until July 2, 1954, when this Nation and its churches had been active for 334 years with the kind of freedom that this bill would

grant, it did not create the kind of monstrosity that we just heard

about, nor do I believe it would in the future.

What is new and what is radical is this bill, which, as you know,

was introduced on the floor on July 2 as Members were leaving for

summer by LBJ, by Lyndon Baines Johnson, who was very upset

that a couple of anti-Communist groups in Texas had been giving

him a very difficult time in the election, and he decided to do what

often has been decided to be done by people in power that did not

like the things that had been said about them. He decided to silence them, so he added on the floor, without debate, the amendment that took away from churches and ministers what they had

enjoyed for 334 years; that is, the right to say whatever they felt

their consciences and the Scriptures were teaching them, and that

they did not need to be afraid of what the government would do

if they said certain things that the government disallowed.

I have traveled all through this Nation. I have talked to thousands, over 100,000 ministers on this subject. I have noticed several things. One of them, if you ask any 100 of them what this

says, we probably would get almost 100 different answers. It is

very confusing. I think that was seen when we heard the experts

talk about it earlier today. It is not something that is easily understood, and I have talked to many ministers who would not say anything on any moral issue or any other issue that might be perceived as being unacceptable because they were afraid that the IRS

54

would come down upon them, open a new file on their church, and

that they would experience repercussions because of that. Therefore, they have abstained from saying anything.

Most people in America today believe that anything that is legal

is right, and anything that is illegal by definition is wrong. Therefore, they feel that it is wrong to speak on these issues today, especially if there is any kind of election that is forthcoming in the near

future, because they believe that this is illegal.

They are not sure what it is that is illegal, because it is, indeed,

confusing and obscure, in many aspects. And when you question

them about that, it is very clear that they do not know exactly

what is or what is not legal for them to say and when they can

say it.

I think this needs to be done away with, and I have talked,

again, to a great many Christians who believe that their pastors

do not say anything about these issues simply because of the fact

that they are afraid of the consequences. This is what the people

believe is the motivation behind that, rightly or wrongly, but I have

heard this said numbers of times.

I believe that what we have in this country here is something

that has contributed in the freedom we had for 334 years, has contributed markedly to the moral and spiritual advantage of this

country, and if we selectively silence those who have the greatest

vested interest in trying to maintain the moral law of God, we are

inevitably going to see a decline in the moral status of the Nation.

And what have we seen in the last 48 years other than just precisely that, indeed?

And, therefore, I think that this unfair and ill-understood concept needs to be abandoned, and we should go back not to some advanced radical new view that somebody might come up with now,

but rather we should go back to what the founders of this country

and Americans in general for over 300 years believed was the proper thing to do.

It was said by a great historian in the 19th century that the

moral force of this country came from the Puritan pulpits of New

England, and without that, we probably never would even have obtained our freedom. And what would the IRS have to say about

things like what Martin Luther King did, or those that fought

against slavery? Would these be construed to be political matters

if they were spoken of shortly before an election? I believe they

would. What would have been the result in our Nation if that were

true?

I believe, ladies and gentlemen, that it is time for us to get rid

of this inequitable, unfair, and ambiguous law that was attached

without any debate. I thank God that 48 years later, finally, the

Congress is getting that debate.

Thank you for your time.

[The prepared statement of Dr. Kennedy follows:]

Statement of D. James Kennedy, Ph.D., President, Coral Ridge Ministries,

Fort Lauderdale, Florida

Good afternoon, Mr. Chairman. Thank you for the opportunity to be here. On behalf of the thousands of people who have signed petitions asking Congress to pass

the Houses of Worship Political Speech Protections Act—some of which you see

55

stacked on the table before me—I am pleased to have this opportunity to address

the subcommittee.

In the summer of 1954, Lyndon B. Johnson had a problem: What to do about powerful anti-Communist organizations threatening his Senate reelection. The answer

proved amazingly simple. Just like Congress this past spring, Johnson figured out

that the best way to deal with these ‘‘special interests’’ was to silence them.

So, on July 2, 1954, as the Senate considered a major tax code revision, Johnson

offered a floor amendment to ban all nonprofit 501(C)(3) groups from engaging in

political activity. Without hearings or public debate, his amendment passed the Senate on a voice vote. Johnson’s revision to the federal tax code was targeted at the

nonprofit groups contesting his seat, but churches were caught up in the ban. In

just minutes and without debate, churches, for reasons that had nothing to do with

the separation of church and state, were stripped of their liberty to participate in

America’s political life.

That will change if ‘‘The Houses of Worship Political Speech Protection Act,’’ introduced by Rep. Walter Jones, and cosponsored by 114 other Members, becomes law.

Jones’ bill will reverse Johnson’s ban and return the protection of the First Amendment to America’s churches, synagogues, and mosques. Today, the hearing that

never took place 48 years ago is convening as the House Ways and Means Oversight

Subcommittee considers this bill.

This legislation is a vitally important step in reversing a long-standing injustice

whereby free speech seems to be protected everywhere except in the pulpits of our

churches and other houses of worship. It will restore to churches a freedom and role

that dates to America’s infancy. Nineteenth century historian John Wingate Thornton said that ‘‘in a very great degree, To the pulpit, the PURITAN Pulpit, we owe

the moral force which won our independence.’’ The British would agree. Disgusted at the black-robed clergy’s prominent role in

stirring the colonies to fight, the Redcoats called them the ‘‘Black Regiment.’’ And

Prime Minister Horace Walpole declared in Parliament that ‘‘Cousin America has

run off with a Presbyterian parson.’’ Walpole was most likely referring to John

Witherspoon, who was a Presbyterian minister, president of Princeton and a signer

of the Declaration of Independence. Witherspoon, who was accused of turning his

college into a ‘‘seminary of sedition,’’ was the most important ‘‘political parson’’ of

the Revolutionary period, according to the Library of Congress.

During the Revolutionary era, it was graduates of Yale and Harvard, serving in

churches across New England, who laid out the theology of resistance that made

war with Britain inevitable. One of the most provocative and influential sermons

preached was Jonathan Mayhew’s 1750 ‘‘Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers.’’ His message, quickly printed and

read on both sides of the Atlantic, justified political and military resistance to tyrants and has been called ‘‘The Morning Gun of the American Revolution.’’

When British General Thomas Gage attempted to silence the incendiary messages

being preached by New England’s Black Regiment, one clergyman, William Gordon,

declared in defiance that ‘‘There are special times and seasons when [the minister]

may treat of politics.’’ To do otherwise was not possible for New England’s ministers,

who had been faithfully applying God’s Word to every area of life since the first generation arrived in Massachusetts.

In the mid-nineteenth century, evangelical Christians were primary agents in

shaping American political culture, according to Richard Carwardine, author of

Evangelicals and Politics in Antebellum America. ‘‘Political sermons, triumphalist

and doom laden, redolent with biblical imagery and theological terminology, were

a feature of the age,’’ he writes.

For example, one minister distilled the question before voters in the 1856 election

as a contest pitting ‘‘truth and falsehood, liberty and tyranny, light and darkness,

holiness and sin—the two great armies of the battlefield of the universe, each contending for victory.’’

Language like that today might earn a visit from the Internal Revenue Service.

It did in 1992 after the Church at Pierce Creek in Vestal, New York, placed a newspaper ad warning Christians not to vote for Bill Clinton for president. Such a vote,

the ad warned in rhetoric echoing 1856, would be to commit a sin. The IRS took

notice and three years later revoked the church’s tax exemption.

Aggressive toward Pierce Creek, the IRS has, at other times, looked the other

way. In 1994, for example, New York governor Mario Cuomo campaigned for reelection on a Sunday morning at the Bethel African Methodist Episcopal Church in

Harlem. ‘‘Cuomo was rewarded with a long, loud round of applause and an unequivocal endorsement from the pastor,’’ according to a Newsday report. The American Center for Law and Justice, which represented the Church at Pierce Creek, uncovered evidence at trial that the IRS knew of more than 500 instances where canVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
56

didates appeared before churches, as happened with Gov. Cuomo and Bethel A.M.E.,

but took no action to revoke these church’s tax-exempt status.

The unequal enforcement of the existing law is just one of several reasons why

scrapping the political activity ban altogether is a good idea. The political activity

restriction is a blatant violation of the First Amendment, is vague and burdensome,

and marginalizes churches at a time when America most needs a moral compass.

The First Amendment states that ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech—.’’ Yet that is exactly what the Congress has done by silencing

churches.

Nor is the political activity ban easy to obey. Not just endorsements, but voter

education activities, such as voter guides that compare office-seekers on issues, may

violate the ban if they are perceived as partisan. Even addressing moral concerns,

such as abortion, from the pulpit during an election campaign may violate the IRS

rule if abortion, for example, is under debate in the campaign.

With so much uncertainty and so much at risk, silence is, regrettably, the only

option for the minister who wants to ensure that the IRS does not open a file on

his church. But when Caesar’s demand for silence confronts the message of God’s

Word, ministers are forced into hard choices. That’s what happened in Nazi Germany a generation ago. Many pastors submitted, and were silent. Others were not,

and paid the price.

If, as has been asserted, we owe our liberties to the ‘‘moral force’’ of the pulpit,

the censorship of that voice—for reasons that have everything to do with partisan

politics and nothing to do with the separation of church and state—is a monumental

mistake that should be quickly corrected. In a culture like ours, which sometimes

seems on moral life support, the voice of the Church and her message of reconciliMitchell.

ation, virtue, and hope must not be silenced.

Chairman HOUGHTON. Thank you, Dr. Kennedy. Ms. Girtonf STATEMENT OF BRENDA GIRTON-MITCHELL, ASSOCIATE GENERAL SECRETARY FOR PUBLIC POLICY, AND DIRECTOR,

WASHINGTON OFFICE, NATIONAL COUNCIL OF CHURCHES

OF CHRIST IN THE USA

Ms. GIRTON-MITCHELL. Thank you, Mr. Chairman and Members of the Subcommittee. My name is Brenda Girton-Mitchell. I

am Associate General Secretary for Public Policy and Director of

the Washington office for the National Council of Churches of

Christ in the USA. For the record, I am also the Chair of the Board

of trustees of the Metropolitan Baptist Church here in the Nation’s

Capital, a divinity student at Wesley Theological Seminary, and a

former staff of the other body.

Thank you for the opportunity to present testimony on behalf of

the National Council of Churches, which is the Nation’s leading organization in the movement for Christian unity. The council brings

together 36 Protestant, Anglican, and Orthodox communions,

which have an average Membership of some 50 million U.S. Christians and more than 140,000 congregations in communities across

the Nation. A list of our Member communions/denominations is attached for the record.

While I cannot presume to speak for all of those individuals I

represent, I do speak for the general assembly of the National

Council of Churches. The assembly is a representative body of some

270 persons chosen by the Member communions, which sets policy

for the council and commends policy to the churches.

Since our founding in 1950, the council has a long and proud

record of witnessing for the religious freedom of all Americans. My

predecessors on the council staff have often found themselves

57

where I find myself today, testifying before a congressional Committee regarding our deep conviction about the religious and civil

liberties that we and all Americans treasure.

We are not bashful about speaking out on public policy, because

we are bound by our sense of mission and our obedience to God.

God requires us to speak out on issues that are designed to help

the common good. We welcomed Dr. Martin Luther King as our

keynote speaker to the council in 1957. We sent a youth director

by the name of Andrew Young to work with Dr. King, and he later

became a Member of this body. We and our Members have

preached, written, marched, applauded, protested, and even prayed

for Congress and for legislation, and have found that this current

legal system serves us well.

It is against this backdrop of a proud heritage and with a continuing concern for religious liberty that I come to you today to say

that while H.R. 2357 and H.R. 2931 are purported to protect the

political speech of churches, they are, in fact, unnecessary, they are

unwise, and they are unwanted by our Member communions of the

National Council of Churches and many other faith groups that

have been represented today.

These bills are unnecessary because the views of the church have

not been muzzled. Houses of worship already enjoy the right and

the responsibility to speak out on any and all political issues. The

system is not broken. We believe that separation of church and

State, which has served our Nation so well for more than two centuries, applies to the institutions of church and State. However, the

separation of church and State does not mean that religion and politics will never intersect. Everything that affects the well-being of

human beings is of direct interest to churches, and churches are

compelled to proclaim what they believe to be right and moral

forces for this whole society, not just for the church and its Members.

My pastor often says, for a religion to truly be relevant, a preacher must come to the pulpit with his Bible, his or her Bible in one

hand, and the newspaper in the other. We know what we are called

to do as we heed the words of Amos: to establish justice in the gate.

This legislation is unwise because the measures in these bills

would corrupt our prophetic voices. Pastors know what their

callings require and are free to speak on any issue. Churches are

already allowed to engage in citizen education, voter registration,

nonpartisan political forums. However, the National Council of

Churches believes that to allow churches to explicitly endorse and

support political candidates crosses the line that has served us well

and puts us in dangerous territory.

The churches could not effectively play this role if they were to

become enmeshed in partisan politics. By encouraging churches to

do so, these bills pose a great threat to the free and prophetic voice

of churches. A church that backs a particular candidate for office

and that promotes one political party over another has forfeited the

critical distance that allows the church to critique the stands taken

by the candidate and the party.

This legislation is unwanted. It threatens the church in ways

that have been noted today. Allowing churches to use tax-deductible dollars to support or oppose candidates for public office often

58

will damage our system of government in yet another way. We are

deeply concerned that, if enacted, these bills will undermine the

progress we have made as a nation in the area of campaign finance

reform. The NCC strongly supports campaign finance reform as a

way to level the playingfield, maintain fairness, and build confidence in our political system.

In closing, I would like to share a quote with you from our

former counsel for religious liberty, the Reverend Oliver Thomas,

who was trained as a Baptist Minister and a lawyer. The wisdom

he shared with the congregation sums up many of our objections

to these bills. He said, and I quote, ‘‘even if there were no prohibition on electioneering in the Tax Code, churches would do well to

avoid such partisan political activity. Rarely, if ever, can a particular candidate or party be identified as God’s choice. The misguided use of Christ’s church for secular and political purposes not

only creates dissension within the household of faith, but also, inevitably, diminishes the churches’ witness and credibility on moral

concerns. In most cases, good theology and good tax advice go hand

in hand.’’ Thank you.

[The prepared statement of Ms. Girton-Mitchell follows:]

Statement of Brenda Girton-Mitchell, Associate General Secretary for Public Policy, and Director, Washington Office, National Council of the

Churches of Christ in the USA

My name is Brenda Girton-Mitchell. I am an Associate General Secretary for Public Policy and Director, of the Washington Office National Council of the Churches

of Christ in the USA and Director of the Council’s Washington Office. For the record

I am also Chair of the Board of Trustees of the Metropolitan Baptist Church, a divinity student at Wesley Theological Seminary and a former staff in ‘‘the other

body.’’

I thank you for this opportunity to present testimony on behalf of the National

Council of Churches, which is the nation’s leading organization in the movement for

Christian unity. The Council brings together 36 Protestant, Anglican and Orthodox

communions, which have an aggregate membership of some 50 million U.S. Christians in more than 140,000 congregations in communities across the nation. (A list

of our member communions is attached.)

While I cannot presume to speak for all of those individuals, I do speak for the

General Assembly of the National Council of Churches. The Assembly is a representative body of some 270 persons chosen by the member communions, which

sets policy for the Council and commends policy to the churches.

The National Council of Churches has a long and proud record of witnessing for

religious freedom of all Americans. Since our founding in 1950, we have filed countless friend-of-the-court briefs in cases where important principles of religious liberty

were at stake. We have helped to convene faith-based coalitions for religious liberty

that were so large and so diverse that practically the only thing its participants had

in common was a dedication to preserving our religious freedoms. And my predecessors on the Council’s staff have often found themselves where I am today—testifying before a congressional committee regarding our deep convictions about the religious and civil liberties that we and all Americans treasure.

Nor are we bashful about speaking out on public policy. We welcomed Dr. Martin

Luther King, Jr. as our keynote speaker in 1957. We sent our Youth Director, a

young minister named Rev. Andrew Young to work with Dr. King in 1961. We and

our members have preached, written, marched, applauded, protested and above all

prayed for Congress and for legislation and have found the current legal structure

serves us perfectly well.

Summary

It is against the backdrop of this proud heritage and with a continuing concern

for religious liberty that I come before you today. I come to say that while HR 2357

and HR 2931 are purported to protect the political speech of churches, they are in

59

fact unnecessary, they are unwise, and they are unwanted by the member denominations of the National Council of Churches and by many other faith groups.

Unnecessary

The full and free participation of the nation’s churches in public policy debates

both before and after 1954—the year that provisions of the tax code were adopted

prohibiting churches from taking part in partisan political activity demonstrates

that these bills are unnecessary. The views of churches have not been muzzled, as

some have claimed; houses of worship already enjoy the right and the responsibility

to speak on any and all political issues. The system is not broke.

Put another way, the National Council of Churches holds that separation of

church and state, which has served our nation so well for more than two centuries,

applies to the institutions of church and state. However, separation of church and

state does not mean that religion and politics will never intersect. In fact, churches

contribute much to the moral thinking and public policy in our nation and that role

has been widely valued and is likely to grow.

Many congregations belonging to our member denominations have opposed official

government policies and actions that they believe are harmful, and we have not

feared reprisals. Many of these congregations have vigorously advocated for policies

that in their view will make for peace and justice and they have not shied away

from controversial subjects. Indeed, churches have weighed in on issues of war and

peace, health care, the rights of women, Civil Rights and most of the hottest issues

that have come before this body. In some cases, our advocacy has enjoyed a measure

of success. In other cases our views have not prevailed, but we have never been prevented from advancing our views.

Unwise

Pastors can use the church as a bully pulpit on any issue and the law already

allows churches to devote a portion of their budget to advocacy, and to engage in

citizen education, voter registration and non-partisan political forums, the ability to

speak out, debate and express differing opinions is an essential part of the freedom

that we have as Americans. To allow churches to explicitly endorse and support political candidates, however, crosses a line that has served us well and puts us in

dangerous territory.

I can vouch for the extent and vitality of church activity on public policy issues

from my vantage point as director for the Washington Office of the National Council

of Churches. My office works closely with the Washington staff of our member denominations, with state and local ecumenical and interfaith organizations nationwide and with congregations across the country. The range of issues that we have

tackled over the course of 52 years is extraordinarily wide, and the passion with

which churches approach these issues is extraordinarily deep.

For half a century we have brought an ethical and moral perspective to the great

issues of the day, from civil rights to the war in Vietnam, from international debt

to domestic welfare legislation, from campaign finance reform to gun violence and

everything in between. To say that churches have been muzzled in the political

arena is simply not true. Every day, churches across the nation generate an abundance of evidence that speaks to their role in holding government accountable and

in publicly advancing their vision of the common good—in the pulpit, in other communications and through education and advocacy on public issues.

But churches could not effectively play this role if they were to become enmeshed

in partisan politics. By encouraging churches to do so, HR 2357 and HR 2931 actually pose a great threat to the free and prophetic voice of the churches. A church

that backs a particular candidate for office and that promotes one political party has

forfeited the critical distance that allows the church to critique the stands taken by

that candidate or that party. The measures in these bills would corrupt our prophetic voices.

Furthermore, churches that back a political candidate run the risk that their

choice for office might very well claim divine sanction for his or her party and its

stances—thus jeopardizing the credibility of religious voices. The church must speak

to worldly issues from the deep places of faith, but must not lend the voice of faith

to temporal interests.

Unwanted

The proposed legislation threatens churches in the ways I have noted and it also

poses risks to the wider society. Legislation that in essence allows churches to beVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
60

come integral parts of political parties and to engage in the heat of political campaigns opens the door to the kind of religious strife that has devastated other countries—from Ireland to Indonesia and from Benares to Beirut—strife from which our

nation largely has been spared by the wisdom of our country’s founders and the continuing vigilance of Congress. As the United States becomes ever more religiously

diverse, the possible permutations for such conflict also increase.

Allowing churches to use tax-deductible dollars to support or oppose candidates

for public office damages our system of government in yet another way. We are

deeply concerned that, if enacted, these bills will undermine the progress that we

have made as a nation in the area of campaign finance reform. The NCC strongly

supports campaign finance reform as a way to level the political playing field, maintaining fairness and building confidence in our political system. As gifts to churches

are tax deductible and gifts to political parties and candidates are not, how fair is

it then to allow political partisans to channel support for their candidates through

churches? We say, not fair at all—to churches or to taxpayers.

For all these reasons, the National Council of Churches, along with many other

faith groups from Baptists to Buddhists, Jews to Quakers, Methodists to Presbyterians etc., views HR 2357 and 2931 as ethical liabilities and sees no advantage

whatsoever for our society or our churches. The proposed legislation would inevitably cause internal dissension among congregations, and tear our communities of

faith apart.

Our stance, based on longstanding policy voted by our member communions, is

also supported by recent opinion polls that once again lift up the common sense of

the American public. The Pew Research Center for the People and the Press and

the Pew Forum on Religion and Public Life found that 70 percent of Americans feel

that houses of worship should not favor one candidate over another during political

elections. Another poll, conducted by Gallup and the Interfaith Alliance Foundation,

canvassed the clergy and found that a full 77 percent of America’s clergy are opposed to their fellow clergy endorsing political candidates.

I want to conclude this testimony with a quotation on this subject from our former

counsel for religious liberty, the Rev. Oliver Thomas, who was trained both as a

Baptist minister and a lawyer. The wisdom that he shared with congregations sums

up many of our objections to HR 2357 and H.R. 2931 and I share his words with

you now. Mr. Thomas said, ‘‘Even if there were no prohibition on electioneering in

the tax code, churches would do well to avoid such partisan political activity. Rarely,

if ever, can a particular candidate or party be identified as God’s choice. The misguided use of Christ’s church for secular political purposes not only creates dissension within the household of faith but also inevitably diminishes the churches’ witness and credibility on moral concerns.—In most cases, good theology and good tax

advice go hand in hand.’’

Member Communions of the National Council of Churches

African Methodist Episcopal Church

African Methodist Episcopal Zion Church

Alliance of Baptists

American Baptist Churches in the USA

The Antiochian Orthodox Christian Archdiocese of North America

Armenian Church of America

Christian Church (Disciples of Christ)

Christian Methodist Episcopal Church

Church of the Brethren

Coptic Orthodox Church in North America

The Episcopal Church

Evangelical Lutheran Church in America

Friends United Meeting

Greek Orthodox Archdiocese of America

Hungarian Reformed Church in America

International Council of Community Churches

Korean Presbyterian Church in America (General Assembly of the)

Malankara Orthodox Syrian Church

Mar Thoma Syrian Church of India

Moravian Church in America (Northern Province, Southern Province)

National Baptist Convention of America, Inc.

National Baptist Convention, USA, Inc.

National Missionary Baptist Convention of America

Orthodox Church in America

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Patriarchal Parishes of the Russian Orthodox Church in the USA

Philadelphia Yearly Meeting of the Religious Society of Friends

Polish National Catholic Church of America

Presbyterian Church (U.S.A.)

Progressive National Baptist Convention, Inc.

Reformed Church in America

Serbian Orthodox Church in the USA and Canada

The Swedenborgian Church

Syrian Orthodox Church of Antioch

Ukrainian Orthodox Church of America

United Church of Christ

Mitchell. Mr. Coyne, would you like to inquire?

Chairman HOUGHTON. Thank you very much, Ms. GirtonThe United Methodist Church

f Mr. COYNE. Thank you, Mr. Chairman.

Dr. Kennedy, Mr. Miller earlier in the other panel testified that

there already is a vehicle by which religious organizations can

channel money into political activities by forming a section

501(c)(4), and I wondered if you took advantage of that particular

path.

Reverend KENNEDY. I am sorry, you wonder if I could——

Mr. COYNE. I wonder if you are currently taking advantage of

that provision in the IRS Code?

Reverend KENNEDY. Yes, sir. At one of our ministries, we are.

Mr. COYNE. So why, then, is it necessary to channel money or

support legislation that would channel money from the collection

plate into political activities when you have this section 501(c)(4)

option?

Reverend KENNEDY. Because actually this bill does not really

address any other religious organizations, but simply houses of

worship. This other ministry I am referring to is not a church. It

is not a house of worship, so it really has nothing to do with this.

Mr. COYNE. Thank you.

Chairman HOUGHTON. Mr. Lewis?

Mr. LEWIS. Thank you very much, Mr. Chairman.

Mr. Chairman, I want to thank you for inviting the witnesses to

be here, and I want to thank all of the witnesses for appearing.

I don’t know exactly where to start, but I have noticed certain

names and church groups and organizations have been thrown

around. I don’t know where to start, but let’s see.

Mr. May, in the beginning you made the point that the church

should be allowed to take care of the sick, feed the hungry, clothe

the naked, visit those in prison, and maybe, Mr. Fauntroy went on

to say to others, to preach the good news. There is nothing that

prevents the church from doing any of these things, is there?

Mr. MAY. There is nothing that says they cannot feed the hungry and clothe the naked. What happens, however, is that a minister may believe, for the same reason he is called to feed the hungry and clothe the naked, that he needs to speak out on an issue,

as Mr. Fauntroy has already indicated he has done his whole life,

because it is a matter of conviction and justice. In those instances,

they are frozen off of the field, because if they do so, they compromise their ability to, in fact, clothe the naked and feed the hungry.

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Mr. LEWIS. Reverend Fauntroy, am I missing something here?

Tell me. Help me out, here. I have a list of Members of the National Council of Churches, and almost every major Protestant denomination, Methodist, Baptist, Orthodox Christian, Christian

Methodist Episcopal, CME, Church of the Brethren, the Baptists,

Presbyterian, all types, oppose this legislation.

Now, your church is a Member of the National Council of

Churches, right?

Reverend FAUNTROY. That is right.

Mr. LEWIS. In the Baptist tradition we believe in a democracy,

but how did you break with the National Council of Churches? How

did you break with the national Baptists or the progressive Baptists?

Reverend FAUNTROY. I break with all of them on the basis of

the fact that I am an experienced Pastor who heads a house of worship.

Mr. LEWIS. Are you saying these other religious leaders are not

experienced as pastors?

Reverend FAUNTROY. You said, break with the body. I would

say, with my church. I am an experienced Pastor, and I am an experienced politician. I know that politics is about who gets how

much of what, when, and where in five areas. For 20 years I

watched and participated with this Congress in the decision as to

who got how much of what of the Commerce budget of the U.S. Department of Health and Human Services, and so forth. So that is

one reason I speak, out of the authority of my experience as Pastor.

Second, I beg to differ with some here who stated, and if I am

incorrect, help me to understand this, that this bill would authorize

churches out of their budgets to pay staff for political campaigns.

Help me out, somebody.

Mr. MAY. In fact, no. I think I stated and my testimony outlined

for you where in the Federal campaign laws this activity is specifically precluded now, whether this bill ever gets out of Committee

or not.

Reverend FAUNTROY. All right. Second, someone has suggested

that a person may make a tax-deductible contribution to the church

to free up money to carry out its budget responsibilities. In 43

years of ministry, I have thought that it has always been unlawful

for people to designate where the money they give to the church

goes. Our church and most churches I know develop a budget to

carry out the worship and service ministries.

I must tell you as a Minister and Pastor of a church, I did not

dare ask the church to put my campaign in the budget. But I will

tell you one thing, when the Tuesday before the Sunday came,

when politicians show up at a place where they know they have

motivated people, I made it clear that having listened to all the

candidates and assessed the issues as they affect income in our

neighborhood, education for our children, health care for our sick,

housing, and justice, that I recommend to you that you vote for this

person or that. If you had shown up in the sixties on that, the seventies, eighties, or now, and put me in jail, I would go to jail on

that.

All I am saying is, and I said at the end, that I recognize that

people who talk east and walk west on income, education, health

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care, and housing for the least of these may use this idea that we

cannot speak, but they ought to be able to use it under the kinds

of fairness and equity that I think exists now. It does not include

some rich person trying to support a politician who is going to cut

the cake of the income, education, housing for his people and to the

exclusion of the least of these; who can give his money and have

it covered like that, no. When Members contributed to my campaigns, they had to go through the usual process.

Mr. LEWIS. Mr. Chairman, may I have another moment or so,

since the witness used so much of my time?

Reverend FAUNTROY. Please forgive me, Congressman Lewis.

Mr. LEWIS. Let me say, Congressman Fauntroy, I appreciate the

contribution you have made to the cause of civil rights and the religious community. I appreciate it very much.

But I wonder whether Dr. Gaddy or Reverend Lynn, Ms. GirtonMitchell, would have something to say about the need to plant this

strong, solid wall, the separation of church and State.

I want to make another little point here, Mr. Chairman. We

could be dealing with some other issues here in this Congress. I

know this is dealing with political activities coming to the churches. Many of these big churches are competing with Wal-Mart and

K–Mart. You are not only engaged in political activity, but some of

you in certain communities around the country, certain churches,

are known as the Republican church, a Democratic church. It is

known. But in some places you are selling books, tapes, T-shirts,

the Bible, and everything. I know we are not dealing with that

today, we are dealing with political activity.

Some of you have mentioned Martin Luther King, Jr. I knew

him; he was a friend of mine. He was my leader. I first met him

in 1958 when I was 18 years old. He never, to my knowledge, never

endorsed a political candidate. You can preach the good news and

tell the story, but you cannot use the church as a political platform.

I think that is in violation of the law.

Dr. GADDY. Reverend Lynn? Ms. Girton-Mitchell?

Reverend GADDY. Congressman Lewis, thank you very much for

the observation. I just have two points to make quickly for the sake

of time.

I must live in a different world from that of Dr. Kennedy. I also

have traveled the Nation. I also have talked to lots of ministers.

I have never met a minister worth his or her salt that was refusing

to talk about moral issues. I don’t know how one ministers without

talking about moral issues.

The legislation that we are talking about today does not discourage talking about moral issues. It does not prohibit that. It does

prohibit the endorsement of a candidate for political office.

I have admired the ministry of Walter Fauntroy for a long time,

I once, long ago, asked him to speak to a session that he probably

does not remember now. But instead of pursuing the proclamation

of good news in the five arenas that he has talked about so eloquently by endorsing a candidate for office from the pulpit, I think

it is much more in order to encourage the people in the congregation to think out of their orientation to the good news, and to work

in both political parties and among Independents to accomplish the

goals.

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I don’t ever want to live in a nation that has come to identify

political integrity by a spiritual definition, or that defines spiritual

authenticity by a political identification.

Reverend LYNN. If I might add to that, and to clarify the record

on this important issue about whether this allows the transfer of

funds directly from a religious institution, a church or an association of churches, all those organizations covered by the Tax Code.

Congressman Crane’s bill is called the Bright-Line Act because he

wants to permit up to 5 percent of the revenues of a church to be

utilized for these purposes. That is more than a casual comment,

that is an extraordinary amount, a large amount from a

megachurch with a budget of $2 million or $3 million which, as

Congressman Lewis points out, exist all over these the United

States. So this is not just a comment here or there that we are

talking about, but the direct ability of organizations to transfer

from the collection plate, literally or figuratively, hundreds of thousands of dollars for the benefit of political persons that they believe, rightly or wrongly, for the best of reasons or the worst of reasons, will somehow move along their agenda.

I think that is absolutely the most dangerous, retrograde direction we can go when we think about both the integrity of the

church and the integrity of the political process, which we are all

concerned about cleaning up on a day-to-day basis.

Chairman HOUGHTON. We have some other questioners here.

Mr. Foley.

Mr. FOLEY. Thank you very much.

Mr. Lynn, you advocate for, obviously, separation of church and

State. Do you quarrel with what is, in essence, a Federal subsidy

to churches through tax-exempt status?

Reverend LYNN. The Members of Americans United for Separation of Church and State are not monolithic in their answer to that

question. The last time we did a survey of our own Members, about

half of them said, do away with tax exemptions for churches. The

other half said, no, keep them, they are important, as long as you

give a similar tax exemption to other charities. That is why we are

not actively advocating on this or other occasions about that issue.

Mr. FOLEY. Let me further the conversation earlier, because you

mentioned, why don’t we give the right to the American Cancer Association and others to be politically active? But I sense there is a

little bit of a difference, because in the churches, truly, you do discuss a multitude of areas where there is a need for involvement.

Reverend Fauntroy mentioned it himself. Don’t you at least allow

that that preacher, rabbi, has some significant stake in the outcome of an election? You can have these great moral discussions in

church all day long, but if you end up electing the wrong person

who has no interest in any of these issues, and you have allowed

it to happen, don’t you by some sense fail your congregation?

Reverend LYNN. I think you may overstate the case about the

church and understate it for charities, because I think you can say

of any major organization that is tax-exempt, that they have an interest, in the broadest sense, in the outcome of elections.

But I do think it is a good idea to have a class of organizations,

tax-exempt charities, religious and otherwise, which are trying to

effect social change through the work that they do day to day,

65

through the advocacy and the educational work, without getting involved in the issue of choosing the best political candidate in every

election. The equation is exactly the same for all those other charities.

Believe me, as you well know as Members of this body, people

who are advocates for more funding for cancer and those who are

advocates for more funding for Parkinson’s disease both have an interest in the outcome of elections.

Mr. FOLEY. Granted.

Let me suggest to you that I am called to speak by the Alzheimer’s Association, the cancer groups. All these groups ask me to

speak to them two or three times a year. During each presentation,

they go on to tell their Members how strong I am on these issues:

‘‘Mark Foley wrote a letter for these, Mark Foley did this.’’ Ultimately, their influence is achieving the same thing that this basic

ruling is suggesting that they are not capable of doing.

Reverend LYNN. They are capable of doing the same. In fact,

many churches would invite you and other Members of this and

other political bodies to come to their churches, and they would

thank you for the good work that you did.

They would not, however, put out campaign leaflets explaining

why you are literally God’s gift to the country. They would not endorse you from the pulpit. Those would be steps that they would

not be allowed to take under current law. They should not take

those under current law now, just as those medical organizations

should not be able to pass out your campaign literature at their

conventions, or invite you to speak and not acknowledge that you

have someone running against you. That would be as wrong for a

secular charity as it would be for a church.

Mr. FOLEY. But they do.

Reverend LYNN. Maybe somebody should form a group and look

into that, because it is not my experience that charities, or churches, by the way, are looking to break the law. I think most charities

want to obey the law. They like the bright-line test we have now,

which is no political endorsement.

‘‘No’’ does not mean a little bit, it does not mean 5 percent, 20

percent, or 19 percent. It just means no intervention in a political

campaign. I think it is simple to understand. I think it has served

us well, and I think we should keep it.

Mr. FOLEY. Mr. May, maybe you can help us. Have you talked

to other church groups about the legislation, both versions, Mr.

Crane’s and Mr. Jones’, relative to their support for the legislation?

Mr. MAY. I have. In Congressman Jones’ measure, H.R. 2357

has polled the largest area of support. I would emphasize that

what this measure will ultimately do is simply remove the anxiety

and uncertainty, because it is very obvious, either from Mr. Fauntroy’s testimony or from the nearly 60 examples I have provided in

pages 18 through 22 of my testimony, that this measure is not

abided by by a whole bunch of churches in America. I don’t think

we intend for those churches to be regarded as criminals or somehow acting outside the law.

We know Jesse Jackson, for example, has preached in churches,

been endorsed in churches, raised money in churches. This is not

about creating some great fear that we are going to change the naVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00069 Fmt 6633 Sfmt 6602 W:\DISC\80331.XXX txed01 PsN: txed01
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ture of our democracy. Remember, until 1954, churches did this all

the time, and our democracy was not otherwise fractured or fissured off in 100 directions.

The bottom line is that we want to make sure that the occasional, the incidental endorsement, particularly from the pulpit

itself, does not mean that you lose your tax exemption.

Then I want to add one thing. Barry Lynn keeps saying that

somehow this permits the actual transfer of moneys from the U.S.

Department of the Treasury or from the donation plate of the

church. I have looked through the campaign finance reform law. I

defy him to show me a section of that law which makes this legal

and permissible. It is not there. It cannot be done.

Mr. FOLEY. Let me just ask quickly, Dr. Kennedy, do you think

that prohibiting ministers from speaking from the pulpit on political issues and their candidates unfairly limits them in carrying

out their vocation?

Reverend KENNEDY. Yes, I do. For example, we talk about

moral issues. I have, as thousands of other clergymen have, spoken

at times about abortion, feeling that this is not right and should

not be done. But should I, 90 days before an election, speak on that

same issue and indicate some candidate that may be against it or

for it, I am in great jeopardy of losing; or I do not lose anything,

it is the congregation, the people who lose it. I do not lose the

money, it goes to the church. But the people who give it lose their

tax exemption, which is something that they have now.

Mr. FOLEY. Thank you.

Chairman HOUGHTON. Thank you. Ms. Girton-Mitchell, I think

we cut you off at one point. Would you like to make a statement?

Ms. GIRTON-MITCHELL. Thank you, Mr. Chairman. I was simply going to say that on behalf of the National Council of Churches,

we believe that this legislation is unnecessary, unwise, and unwanted. With the present statutes, the clergy is able to do what is

needed to be done.

Our primary focus is that of helping society in general. Ministers

are able to speak out on issues. We have very knowledgeable congregations today who, with the right educational opportunities, are

able to make their decision on political candidates without direct

endorsements from the pulpit.

Chairman HOUGHTON. Thank you very much.

Mrs. Thurman.

Mrs. THURMAN. Mr. Chairman, Mr. Pomeroy has a 4:00, and

if I could, I would like to go ahead and let him have my time.

Chairman HOUGHTON. All right. Go ahead, sir.

Mr. POMEROY. Thank you, Mr. Chairman, and thank you, Congresswoman Thurman.

I must say that I am somewhat surprised at the testimony that

I have heard. One would conclude from some on the panel that the

church has been utterly silent on the moral issues of our time for

the last 50 years, ever since 1954.

Now, I think if we look back, my recollection of the church’s role

during this period of time is as a significant source of activism and

leadership against segregation policies, a major bulwark of the

movement for civil rights, and certainly raising the four questions,

67

the important questions that needed to be asked about the Vietnam

War.

If some would think church activism and moral issues only come

from the left, look at the seventies, eighties, nineties, the tremendous activism marshaled in congregations against abortion, and the

tremendous political force that has come from there. So it certainly

is not as though the churches have been constricted or leaders of

churches have been constricted from speaking out about the moral

issues of our time.

Really what this legislation is about is not at all, not one little

bit, about a fear that some kind of nuanced slip from the pulpit

might cross the line.

There are a couple of items I wish to put in the record on this

hearing. First is a copy of the ad that provoked the court case in

the Pierce Creek case that revoked their tax exemption. This is a

full-page newspaper ad that cites Scriptures: ‘‘The Bible warns us

not to follow another man into sin, nor help him promote sin, lest

God chasten us. How then can we vote for Bill Clinton?’’ And it

says by way of disclaimer, ‘‘This advertisement is cosponsored by

the Church at Pierce Creek. Tax-deductible donations for this advertisement are gladly accepted.’’ This is not some nuanced thing

from the pulpit.

[The information follows:]

USA Today

October 1992

CHRISTIAN BEWARE

Do not put the economy ahead of the Ten Commandments.

Did you know that Governor Bill Clinton...

• Supports abortion on demand? (Violates Exo. 20:13, Lev, 20:1–5)

• Supports the homosexual lifestyle, and wants homosexuals to have

special rights? (Violates Exo. 20:14, Lev. 20:13. See also Rom. 1:26,27)

• Promotes giving condoms to teenagers in public schools? (Violates

Exo. 20:12, Col. 3:5. See also Rom. 1:28–32)

Bill Clinton is promoting policies that are in rebellion to God’s Laws. In our desire

for change, do we really want as a president and a role model for our children a

man of this character who supports this type of behavior?

But what about the economy?

Yes, we are in tough economic times but if God forbid that we sell out our most

sacred beliefs in a vain hope of financial gain. How can we expect God to bless our

economy if we plunge down a path of immorality? (Deur. 28)

The Bible warns us to not follow another man in his sin, nor help him promote

sin—lest God chasten us. (See Deut. 13, Jer. 23, Prov. 4:14; 11:21; 16:5, 1 Tim. 5:22)

How then can we vote for Bill Clinton?

This advertisement was cosponsored by The Church at Pierce Creek, Daniel

J. Little, Senior Pastor, and by churches and concerned Christians nationwide. Tax deductible donations for this advertisement gladly accepted.

Make donation to: The Church at Pierce Creek. Mail to: PO Box 132 SVS,

Binghamton, NY 13903–0132

This advertisement was not authorized by any political candidate or candidate Committees.

f

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Mr. POMEROY. What worries me about this is that we are going

to have almost an Elmer Gantry model, someone with an agenda

that is not their best effort at understanding their lord’s agenda,

God’s agenda, but their agenda, trying to enlist and inflame the

congregation so they might contribute funds that church leadership

could directly funnel into campaigns with utterly no disclosure

about where those dollars are individually coming from.

Now, you say, no way, religious leaders would not be prone to

overstate. Let me read to you from an ad that I will also put into

the record of this hearing, a mailing: ‘‘Stop IRS intimidation of

churches and ministries. Please help my church and my pastor so

we can,’’ and this is the response, ‘‘Yes, help us. Fight for us.

Please help my church and pastor so we can speak out on moral

issues of national importance. I stand behind you to support all the

work’’ of a certain ministry. And it goes on to say in the petition

itself, ‘‘Please give your full support to passage of legislation that

would restore freedom of speech to America’s houses of worship.’’

[The information follows:]

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Mr. POMEROY. Well, in my opinion, that does not in any way

represent an effort to capture for the parishioner the issue before

us. In fact, I think it is a perfect example of what we are worried

about, a religious leader leveraging the confidence and faith of

their congregation to drive a personal agenda by funneling cash directly into the political system. A lot has changed since 1954, Mr.

May.

In fact, in 1954, I think we would have one cycle where there

was the initial effort of television advertising. The technological

revolution undergirding the campaign since that time has been a

complete revolution, completely expanding the influence of money

in campaigns and enhancing the danger of those that would purport to speak on behalf of God interpreting very narrow political

agendas.

I will quote from the testimony of Dr. Kennedy, where he talks

about we need this bill because present law selectively silences

those who have the greatest vested interest in upholding the moral

law of God. Well, Dr. Kennedy, there are a whole host of churches

on the other side of this question from now. I go to one of those

churches, the Presbyterian church, and when we pray the Lord’s

prayer in my church, we pray that God’s will be done on Earth like

it is in heaven, and we really mean it.

We don’t think you mean it any more than we mean it. We mean

it, too. We couldn’t be more sincere and devout as we try to bring

this about. So, I must say I not only take exception, but I take

some offense that you purport to have a greater vested interest

than we do in trying to bring about the Lord’s work on Earth. And

let me just tell you that that is exactly the kind of attitude that

makes me so fearful of a church leader being able to use, really almost misappropriate the funds of the trusting parishioners for

crass direct entry into the political system, again, without any accountability in terms of where those dollars are coming from.

I have used my time, Mr. Chairman. I thank you for letting me

speak my piece on this important legislation.

Reverend KENNEDY. Mr. Chairman, having been mentioned by

name——

Mr. POMEROY. Go ahead, Doctor.

Reverend KENNEDY. I would like to respond. Sir, you totally

misunderstand what that statement means. I, in making that

statement, was referring to the clergy in general in this country,

that if the clergy are silenced, since it is the God-given function of

the clergy to try to maintain decency and order and morality in a

nation. As we have seen one historian said, it was from the Puritan

pulpit that the moral force of America was borne and strengthened.

Therefore, I am saying if the Congress, or anybody, were to silence

clergy on crucial issues, then they would have been, indeed, hampering the moral ongoing of decency in America, and that I say is

what precisely has happened.

Mr. POMEROY. Dr. Kennedy, I would just respond by saying

that this country was founded on very important religious values.

They continue to be the bedrock of what distinguishes our Nation

and represent the hope for our future, but it does not take a 30-

second ad funded by parishioners to establish moral leadership

78

from the churches. And in fact, the moral leadership of the churches during the period of time that you say we have been silenced,

I think, speaks so powerfully for historical evidence that indeed the

present balance has allowed the church plenty of room to offer

their ongoing vital contribution to this country. I believe this legislation tipped that over in very dangerous ways.

Mr. MAY. Mr. Chairman, since my name was mentioned as well,

might I have a moment to respond?

Chairman HOUGHTON. Absolutely.

Mr. MAY. I would just say, again, on page 1 of my testimony,

I explain why under the new campaign finance laws and the current campaign finance laws, there is no such thing as taking out

a 30-second ad by the parishioners with use of the church money.

It can’t happen. The second thing is that you have expressed, I

think, a balanced revulsion toward the idea that churches may get

so involved in political matters. But the truth is, there is a gigantic

portion of the churches in America who do this, and either we have

laws that are evenhanded and apply across the board or not. We

have had testimony from Mr. Fauntroy, who has made it clear that

he has endorsed from the pulpit. The IRS expert panelist said that

clearly is political intervention in violation of the Tax Code. I don’t

believe it is the intent of Congress for our pastors and our moral

leaders to be able to say to their congregations, I have an understanding about what I believe is right in terms of justice and indeed what the call of God is on my life and my congregation’s life.

And therefore, I believe that so and so does better in the public

sphere to recognize and to fulfill those things than such and such.

Please support and vote for so and so.

And when you do that incidentally or occasionally, I don’t believe

the republic comes crashing down. We did it before 1954, and this

measure simply provides that same sense of balance back into

what we are doing today.

Mr. POMEROY. Again, it is not as though the churches have

been missing from the landscape of debate on these issues since

1954. They have been at the heart of debate on one moral issue

after another. Dr. Gaddy, as long as everyone else is jumping in

with the other side, do you feel or do you, the ministers your organization speaks for, feel as though they are somehow constrained

and muted about their ability to participate in national debate relative to moral issues?

Reverend GADDY. I am completely baffled by that observation.

I don’t know what ministers are talking about in the pulpit if they

are not talking about the way religion impacts life in all of its complexity and need. What is at stake here, as I understand it, is not

a prohibition against any minister talking about issues that have

moral dimensions to them. What is at stake here is saying to ministers that you should not use the sacred desk and claim the authority of God to endorse a candidate for public office. And I have

a hard time, I must admit, understanding why ministers resist

that.

The fact is that if we went that route, perhaps there would be

mobilized some political movements that would be satisfying to the

supporters of these proposed bills. You might accomplish that, but

you would lose your congregations. Can you imagine what happens

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to people in a congregation who have fundamental spiritual needs

of grief or family counseling or whatever, and they find themselves

in a congregation in which they, on the basis of their conscience,

disagree with the endorsement of the president of the congregation

or of the pastor or the rabbi or the imam? Where do they go for

help? And, so you reconfigure the whole religious landscape so that

people are looking for ministers whom they can trust for spiritual

counsel on the basis of the political identity of that congregation.

People don’t deserve that, and this Nation doesn’t need that.

Mr. POMEROY. You think indeed that there might be, with this

legislation, more of an inducement for those to take advantage of

a minister position to drive a political agenda, either personal or

very personally entwined with the ideological advocacy in an election?

Reverend GADDY. It is an invitation to do that as I see it. To

pass the legislation would say we are encouraging ministers to become political power brokers and to endorse candidates from the

pulpit. Ministers are a cross-section of the population, and sometimes ministers, like everyone else, use their religion rather than

letting their religion use them. It is very possible, under the passage of a bill like this, that someone could mistake indigestion or

a political preference as the revelation of God. In a hierarchical

congregation in particular, if the minister says this is God’s man

or woman for this position, people in that congregation have a religious responsibility to pay attention to that authority. I think it is

a blatant misuse of religious authority.

Reverend FAUNTROY. May I respond to two issues?

Chairman HOUGHTON. We have got to move along here, Walter. But please go ahead, and then we will——

Reverend FAUNTROY. Well, first of all, if I thought that this bill

authorized the laundering of money for political purposes to the

churches, I would be opposed to it. And second, I do take issue with

those who say the church has spoken out over the last 30 or 40

years. And most of the times they have spoken out the wrong way,

as far as I am concerned. You ought to read Martin Luther King’s

letter from a Birmingham jail to get an idea of what some churches

thought needed to be done to endorse the status quo.

And you need—I teach my people, at least in my church, that I

am not God, that God is not a Democrat or a Republican, God is

not a white or a black, God is not a Muslim, Catholic, or a Jew.

God is the one who rewards those who diligently seek him in the

care of the least of these. And it is not enough to talk that talk generally. You have got to take the newspaper in the pulpit, at least

what they are reading, and help them to interpret the word of God.

And I would hope that this bill would not authorize people to

claim they speak in the name of God. They speak in a name of a

world that is consistent across every major religion in the world.

Take it from somebody who has studied comparative religion, that

God requires you to do justly, love mercy, and walk humbly with

God and not just talk it, but walk it.

Chairman HOUGHTON. Thank you. Mrs. Thurman.

Mrs. THURMAN. Thank you, Mr. Chairman. First of all, I need

to ask a question. How many churches are there in this country?

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I am just curious. I have no clue what that number is. Anybody

know?

Reverend KENNEDY. There are about 300,000 Protestant

churches. I know that.

Mr. MAY. I was just going to add there must be at least 280,000

because Barry Lynn mails to them to make sure that churches

don’t do this sort of thing.

Reverend FAUNTROY. I can tell you the statistics for—the 1990

Census show there were 40,000 African American churches across

seven denominations that convened 24 million people a week.

Mrs. THURMAN. So, Mr. May, when you said that this law was

intrusive, let me just give you some facts that we have, that there

has only been two churches that have lost their exemptions. There

have been only four to five religious groups that have lost their exemption. And it is my understanding there are only two that have

led or have had to pay an excise tax. So I would say, after asking

that question and the response I get, that is a very small percentage. I certainly can appreciate and understand, you know, the issue

and why you are in favor of this, but I certainly am not one to believe that we have been so intrusive of this government into our

churches and our places or worship that this, you know, has caused

a problem.

You know, I am somewhat offended in some ways for those that

might be for this piece of legislation. I know that sounds a little

curse, but I have to tell you. You know, I am a thinking person.

I go to a church to get my moral stability, to hear the teachings,

to have an understanding of the word. I don’t go for somebody to

interpret for me how and what I should believe, how I should

think, and how I should vote. I would be offended and am offended

if that happens. That is my right to decide that, and I do worry

about that retribution if I, in fact, voiced a different opinion as to

either part of my congregation or to my pastor. You know, what

kind of retribution is put on me as a person that has a different

thought?

I mean, we see that now all across our country where that can

happen. I mean, you know, I have people that come up to me all

the time and say I am such and such, but I just don’t believe, you

know, this part of what they are teaching. And to come down and

feel like—I mean, I have to tell you, I mean, I would like to believe

that we should not take something that we think is very precious

to our democracy away from people, and that is, the ability to think

and clearly decide, based on what you have taught them. I mean,

you also need to understand that you have been giving them what

you believe is the right way to live your life.

And certainly through those teachings, you know, Dr. Kennedy

and others, you would be imparting that information onto them. Do

we have such little faith in those folks that listen to us that not

to make the right decision, but that we would have to be told what

decision were made because we don’t get it? I mean, I just—I am

very confused that we would go in that direction.

And maybe the opposite I guess could be made that, you know,

maybe you should be able to do that and we should still have the

right to have that decision, but I—just as a person who would do

that—and especially because there is an ability for you to already

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do that under section 501(c)(4). If people believed that you ought

to be involved in those activities, they have a way of giving those

moneys, just like people who give money to me for my campaign.

They don’t get tax deductions for that, and they give me the opportunity to spread my word, and people have the right to hear it and

make a decision.

So I just—if you want to comment on it, fine. I just kind of—— Reverend LYNN. I would like to comment on it also. I think Congresswoman Thurman, you raise a good point about what brings 70

percent of Americans in the latest poll to opposing this idea of allowing churches to contribute. Churches do, in fact, make important civic contributions by the educational process they use. Even

a tax exempt church is invited to have—certainly may invite all the

candidates for the school board or the local congressional race to

come to their church. If he or she chooses not to come, that is the

decision by the candidate. There are also kinds of civic responsibilities that churches can take, including nonpartisan get-out-the-vote

campaigns, as the representatives on the first panel made clear.

So it is not like those of us who are actively engaged in the

church cannot help educate people, but ultimately the education

ought to stop at the polling place curtain. I think that is exactly

where ministers, priests, imams, and rabbis should not be. And

this is a bill that would take them a lot closer than they ought to

get.

Reverend KENNEDY. May I say that I certainly agree with you

that intelligent people have the right to think. If this bill were in

any way trying to limit that, I would definitely oppose it. I certainly believe that I have the right to think. I believe my congregation has the right to think. Our congregation happens to be of a

certain economic level, but most of those people are very well educated. We have many doctors, lawyers, professors of this sort in our

congregation.

I have never once ever told them to vote for anyone or against

anyone. Why? It is against the law. I try to keep the law. Nor the

idea that I as a clergyman am going to go inside the curtain when

they pull their levers and cast their votes, I mean, that is just too

preposterous even to comment on. But the thing is, if it is true that

many, many people would hear a pastor speaking and may recommend a candidate, if they didn’t like that, they would go somewhere else, and let me say this, ministers are not utterly stupid.

They are not going to do things from the pulpit that are going to

drive their congregation away. I can’t imagine that they would be

that foolish.

And so, you know, there is a fact, a man has his own conscience,

his own mind, and he is going to indeed keep in mind the congregation he is dealing with. And the ideas that have been bounced

around by several Congresspersons today to me are just beyond

comprehension that any minister would do something as foolish as

that.

Mr. MAY. Could I just comment that all this measure—Congressman Jones’ measure is intended to do, is, for the same reasons, apparently Congress is comfortable with, an insubstantial

amount of lobbying activity from churches and exempt organizations. They are going to accept the same sort of thing from churchVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00085 Fmt 6633 Sfmt 6602 W:\DISC\80331.XXX txed01 PsN: txed01
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es, and part of the reason is it is already happening. You know it

is happening. I know it is happening. But we are talking about direct endorsements now. Again, I refer you to the 60 examples I provided in my testimony, just from a Lexus-Nexus search. It is real

clear that many pastors in America, in fact, believe for the reasons

that Mr. Fauntroy, who has communicated here today, that he believes may be part of his responsibility to let his flock know how

he feels about these issues. There is nothing improper or immoral

about it.

I don’t believe he insults his congregation when he does it, and

I am sure they are filled with thinking people just like your congregation is. But he believes it is important to do it, and it is part

of the democratic pluralistic system we have. And when you know

that many churches may do it, but others, for the reasons that Dr.

Kennedy just articulated, he won’t break the law, you have got

yourself this dual-standard kind of a system.

Now, that is not what anybody really is trying to get here, so all

we do for the same reasons that you trust them to be able to engage in lobbying, a very important activity for a free people, likewise they could do the same thing.

Now incidentally or occasionally, not a lot of it, insubstantial is

the phrase—no 5 percent Bright-Line. We are not here to support

Congressman Crane’s measure in that context, but Congressman

Jones’ we are for the reasons we expressed. We do believe it is a

liberty issue, which is why we are very comfortable in suggesting

that, in fact, it is a necessary change for the law.

Mrs. THURMAN. But let me say something to you, though.

Every day we are going to have a piece of legislation on the floor

this week, and my guess is that there will be a group of organizations that will be supporting the welfare reform or not supporting

it. It will have the interfaith alliance. It will have the Catholic

church charities. It will have, I don’t know how many more. We get

that lobbying all the time. We hear from those people all the time.

It is not against anything. It is not, you know, so you are still given

that opportunity in your participation of government.

Mr. MAY. And you don’t believe it threatens democracy and freedom, of course. That’s right. It is perfectly good to have that exchange.

Mrs. THURMAN. And I don’t disagree, but I think from, maybe

from the pulpit or from or ways without going through the proper

channels, I mean, I think, you know what? We just disagree.

Mr. MAY. Will you just acknowledge for me that, in fact, it happens and it does happen a lot in a lot of churches in America right

now today, and either the IRS has decided because it was articulated in its panel that it is against the current law, and yet they

do it and the IRS goes, oops, I didn’t see that, but now and again,

they may decide there it is; I am going to make sure this person

gets penalized. And that is the reason I think you have to change

it, to make it fair and right for all players in the game for the reasons that——

Mrs. THURMAN. Well, it just seems odd to me, as I mentioned

the statistics that I have, that two or three churches have been the

ones that have been penalized when there are hundreds of thousands of other churches out there. One or two didn’t play. One or

83

two didn’t get caught. I don’t know what the reasons are, but it

seem to me some chose to go a little step further than those who

have tried to play by the rules. And I think that is the issue here.

Reverend LYNN. You know, I do know what the answer to some

of this is, because we were involved in distributing information to

the Internal Revenue Service about that outrageous ad that Congressman Pomeroy indicated. It had been placed in USA Today at

a cost of $44,000. The pastor of that church, who Mr. May represented, said repeatedly, including to the courts and to the IRS,

you know, God told me what to do and I don’t really care what the

Congress says or the courts say or the IRS. I am going to keep

doing it. Compare that to your former colleague here, Congressman

Floyd Flake. Congressman Flake endorsed Al Gore over Bill Bradley in the New York primary in the last presidential race. That was

considered a pulpit endorsement. The IRS visited him. He said, you

know, I did the wrong thing. I am not going to do it again.

So obviously the treatment that the IRS gives to someone who

says I made a mistake and I am not going to do it again ought to

be different from that of a man who says, God told me to do it, I

don’t care what the secular law requires, and I am going to keep

doing it again. That is a distinction that makes a difference in law

enforcement across the board.

Reverend FAUNTROY. Mr. Chairman, may I please ask for clarity on three things. I read 2357, and I did not think it, I did not

interpret it as authorizing churches to monitor money for political

candidates.

Mr. MAY. It does not.

Reverend FAUNTROY. Second, I did not consider it a means by

which a church could meet and, by a binding vote, commit the

church to vote for somebody. That is not true, is it?

Mr. MAY. No.

Reverend FAUNTROY. All right. Now, third, my view is that the

responsibility of leadership is to lead, and I will not abandon that

responsibility. And I don’t want to see ministers like Floyd Flake

who have got people who are wanting in income, in education,

health care, housing, and justice, to many ministers every day who

have a stake in the election, not to know what he is committed to

learn as a leader, to share with them, not a binding vote, but simply to say, look, I have looked at this. You all have been pushing

pots and pans in somebody’s scrub kitchens all week.

I have been reading, and I have been studying these things, and

I think consistent with our mission, I am going to vote this way,

and I hope you will. Is anything wrong with that? And why would

Floyd Flake feel upset about looking at——

Reverend GADDY. I do see something wrong with it.

Reverend FAUNTROY. Tell me.

Reverend GADDY. Okay. Because the authority of the person behind the pulpit is a derived authority. When you become a religious

person, you don’t become perfect in all understanding. Ordination

doesn’t carry with it a guarantee of infallibility. The authority is

a derived authority based on the scriptures and oral traditions, and

the nature of the God that you serve. People listen to you when you

work with that authority saying ‘‘We need to feed the poor, we

need to clothe those who are naked’’ and so forth, but the leap from

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speaking with that authority to saying ‘‘and the best way for you

to do that is to vote for this candidate’’ that is not a legitimate use

of spiritual authority. Then you are speaking of your personal judgment.

Reverend FAUNTROY. Sir, you need to come to my church and

be a part of my—— Reverend GADDY. I can’t. I have to preach in my church.

Reverend FAUNTROY. They do not consider me God. You hear

me? And a lot of people in the congregation—— Chairman HOUGHTON. We will accept that as fact, Walter.

Reverend FAUNTROY. No, they really don’t. And you can trust

people to make their own judgments, but they want to know from

their spiritual leader, and spirituality has little to do with a pie in

the sky. It has to do with these five things I have been talking

about, and they want to know how you feel.

Reverend GADDY. But you are using a spiritual judgment, in

your words, using a spiritual judgment to commend a political decision.

Reverend FAUNTROY. And politics is about who gets how much,

what, when, and where. I understand that and—— Chairman HOUGHTON. All right. I would like to ask Mr. Lewis

for a comment.

Mr. LEWIS. Mr. Chairman, I think Dr. Gaddy said it all, and I

don’t want to get into a battle between these two religious leaders

here. Walter, all of that may be well and good, maybe perfect in

your understanding. No one is asking people to violate their conscience, their religious conviction, but if you violate the law, then

you are prepared to pay the consequences, and that is very much

in keeping with the philosophy of nonviolence, with the philosophy

of David Thoreau in Civil Disobedience. So if you go down that

road, then all the rest will be—you know, the law is the law.

Reverend FAUNTROY. That’s right.

Mr. LEWIS. And the church is not necessarily—the activity—political activity, cannot secede the law.

Chairman HOUGHTON. Thanks very much.

Mr. LEWIS. I guess we can say amen to that, huh?

Reverend FAUNTROY. Yeah. I have done it all my life. Unjust

laws are not to be obeyed. Ask Thoreau. Ask Martin Luther King,

Jr.

Chairman HOUGHTON. Well, usually the Chairman has to step

in and stir things up. I didn’t have to do that today. It has been

an extraordinary day. I certainly appreciate this, and if there are

no other questions, this Subcommittee hearing is adjourned.

[Whereupon, at 4:27 p.m., the hearing was adjourned.]

[Submissions for the record follow:]

85

Alliance for Justice

Washington, DC 20036–1206

May 14, 2002

The Honorable Amo Houghton, Chairman

Committee on Ways and Means

Subcommittee on Oversight

U.S. House of Representatives

1136 Longworth House Office Building

Washington, D.C. 20515

Dear Representative Houghton:

The Alliance for Justice submits this written statement for consideration by the

Subcommittee On Oversight and inclusion in the printed record for the May 14,

2002 hearing on the Houses of Worship Political Speech Protection Act (H.R. 2357)

and the Bright-Line Act of 2001 (H.R. 2931).

The Alliance for Justice is a national association of 60 public interest advocacy

organizations. A primary mission of the Alliance is to strengthen the capacity of the

public interest community to influence public policy. The Alliance’s Nonprofit Advocacy Project works with nonprofits around the country to enhance their ability to

participate in the policy process. The Project monitors federal legislative developments that impact 501(c)(3) organizations, offers workshops on the rules governing

nonprofit lobbying and political activity, and produces plain-language legal guides

for nonprofit organizations.

The Alliance for Justice is opposed to the passage of the Houses of Worship Political Speech Protection Act and the Bright-Line Act of 2001 in their present form.

We oppose any amendment of the tax code that confers rights to one group of

501(c)(3) organizations to the exclusion of others. However, we would support permitting all public charities to engage in a limited amount of political activity.

Presently, the law strictly prohibits any 501(c)(3) organization from engaging in

political activity. The Houses of Worship Political Speech Protection Act and the

Bright-Line Act of 2001 propose to amend the Internal Revenue Code to permit religious 501(c)(3) organizations to engage in political activity while continuing to forbid

non-religious 501(c)(3) organizations from engaging in these activities. This distinction between religious and non-religious 501(c)(3) organizations is both exclusionary

and unwarranted.

The provision is unwarranted because non-religious 501(c)(3) organizations are in

greater need of a law allowing insubstantial political activity than are religious organizations. As the D.C. Circuit Court of Appeals noted in Branch Ministries v.

Rossotti, when a religious organization loses its tax-exempt status because it engages in political activity the loss is more symbolic than substantial. If the Church

does not intervene in future political campaigns, it may hold itself out as a 501(c)(3)

organization and receive all the benefits of that status. 211 F.3d 137 (D.C. Cir.

2000). Religious 501(c)(3) organizations do not have to submit an application to the

IRS for tax-exempt recognition, thus, the loss of their tax-exempt status is less detrimental then it would be to a non-religious 501(c)(3) organization. Non-religious organizations stripped of their exemption for electioneering would have to reapply

with the IRS to regain their tax-exempt status.

In addition, history suggests that a complete ban on political activity was never

intended for any 501(c)(3) organization. Legislative history supports the view that

Senator Lyndon Johnson’s amendment to create the political prohibition, adopted as

part of the 1954 Revenue Act, was intended to extend the same insubstantial activity restrictions on political activity as it did to lobbying. 100 Cong. Rec. 9,604 (1954).

Nevertheless, the IRS and judiciary have continued to interpret an absolute ban on

political activity. Thus, to correct this misinterpretation, all 501(c)(3) organizations

should be allowed to engaged in an insubstantial amount of political activity.

The Alliance for Justice believes that any change to the political prohibition

should apply equally to all 501(c)(3) organizations, not strictly religious 501(c)(3) organizations. We oppose any proposed change that is inequitably reserved for the

benefit of some 501(c)(3) organizations to the exclusion of others. Therefore, unless

the Houses of Worship Political Speech Act and the Bright-Line Act of 2001 are

amended to apply to all 501(c)(3) organizations, we would oppose any amendment

to the current political prohibition.

Thank you for this opportunity to comment on these bills. We would be happy to

assist the Subcommittee in any way as it considers this legislation.

Sincerely,

Nan Aron

f President

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Statement of the American Jewish Committee

AJC STRONGLY OPPOSES THE HOUSES OF WORSHIP POLITICAL

SPEECH PROTECTION ACT OF 2002

With over 110,000 members and supporters and 32 offices around the country, the

American Jewish Committee, an organization, long engaged in the fight for civil

rights and religious liberty, strongly opposes the Houses of Worship Political Speech

Protection Act, introduced last year as H.R. 2357 by Representatives Walter Jones

(R–NC) and John Hostettler (R–IN).

This bill would endanger the integrity and autonomy of houses of worship by injecting them into partisan political campaigns. Federal tax law has been clear for

decades: houses of worship, like other 501(c)(3) organizations, cannot legally engage

in partisan politicking and retain their tax exempt status for contributions. This

simple and unambiguous provision of federal law has served as a valuable safeguard

for the integrity of both religious institutions and the political process.

Current law upholds the integrity of houses of worship. Churches, synagogues,

temples and mosques should not be used as political headquarters or as a means

of partisan fundraising for political activities. Tying houses of worship to partisan

activity would demean those institutions, and the potential for them to be involved

in political campaigns would lead to pressure on them to take a partisan stance.

This bill is unwanted and unneeded by America’s clergy. In a recent Gallup/Interfaith Alliance Foundation poll, a full 77% of clergy were opposed to their fellow clergy endorsing political candidates. Another poll conducted by The Pew Research Center for the People and the Press and The Pew Forum on Religion and Public Life,

found that 70% of Americans feel that houses of worship should not come out in

favor of one candidate over another during political elections.

The bill is predicated on false assumptions about existing law. Supporters of these

bills have argued that their enactment is necessary to allow religious leaders to

speak out on issues of interest to their congregations. The reality is that religious

leaders have an absolute right to use their pulpit to address the moral issues of the

day. The only things tax-exempt houses of worship may not do is endorse or oppose

candidates, or use their tax-exempt donations to support partisan campaigns. Current law simply limits groups from being both a tax-exempt ministry and a partisan

political entity.

In addition, this bill would open a dramatic loophole in the nation’s campaign finance laws. Donations to houses of worship are tax deductible because the government assumes that their work is contributing to the common good of society, not

a political party or a partisan campaign. As such, contributions to churches are tax

deductible and donations to political candidates and parties are not. Therefore, these

bills would create a significant new loophole in our nation’s campaign finance laws

with serious ethical and legal implications.

The American Jewish Committee urges you to oppose this measure, which threatens religious liberty and the independent character of houses of worship.

Statement of the American Jewish Congress

f The American Jewish Congress is an organization of American Jews founded in

1918 to protect the civil, political, religious and economic rights of American Jews

and all Americans. It is tax exempt under 26 USC § 501(c)(3). In its work it has

emphasized both the protection of religious liberty and the ban on religious establishment. Although firmly committed to the freedom of religious persons and institutions to speak freely concerning public issues, it nevertheless opposes the so-called

House of Worship Political Speech Protection Act, H. 2357 as both unwise and unconstitutional. Moreover, even if it agreed with the bill’s purpose and goals, the language of the House of Worship Political Speech Protection Act would not in any

event achieve its stated purpose.

I. Religious Ideas Are Not-Band Should Not Be-Banned From the Marketplace of Ideas

Exempt organizations are, and should be, free to address public policy questions

from whatever perspective they choose without hindrance from government. This is

as true of religious organizations as it is of any other.

The separation of church and state does not require the exclusion of religious

voices from the marketplace of ideas. On the contrary, as Justice Brennan explained, concurring in McDaniel v. Paty, 435 U.S. 618, 640–42 (1978):

87

[R]eligious ideas, no less than any other, may be the subject of debate which

is ‘‘uninhibited, robust, and wide-open. . . .’’ Government may not interfere with

efforts to proselyte or worship in public places. . . . It may not tax the dissemination of religious ideas. . . . It may not seek to shield its citizens from those

who would solicit them with their religious beliefs. . . .

That public debate of religious ideas, like any other, may arouse emotion, may

incite, may foment religious divisiveness and strife does not rob it of constitutional protection. . . . The mere fact that a purpose of the Establishment Clause

is to reduce or eliminate religious divisiveness or strife, does not place religious

discussion, association, or political participation in a status less preferred than

rights of discussion, association, and political participation generally. ‘‘Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional

positions. Of course, churches as much as secular bodies and private citizens

have that right.’’

The . . . goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach

or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities. . . .

In short, government may not . . . promote ‘‘safe thinking’’ with respect to

religion and fence out from political participation those, such as ministers,

whom it regards as overinvolved in religion. Religionists no less than members

of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion. . . . It

may not be used as a sword to justify repression of religion or its adherents

from any aspect of public life. . . .

The antidote which the Constitution provides against zealots who would inject

sectarianism into the political process is to subject their ideas to refutation in

the marketplace of ideas and their platforms to rejection at the polls.

(Citations omitted.)

Nothing in the Internal Revenue Code prohibits houses of worship, or their clergy,

from taking a position on the burning ‘‘moral’’ issues of the day or from endorsing

candidates. Any rule of that sort would be incompatible with historic practice. American religious leaders took a leading role in preaching about the Revolution, slaveryon both sides, it should be recalled-social reform, nativism, science teaching in the

schools, prohibition, war and peace, civil rights, and, of course, gambling and abortion. In retrospect, some of these religious intrusions into the political sphere produced happy results. In others, the results were less happy, even, judged by today’s

standards, offensive. But that does not mean that government should seek to silence

religious speech. And, in fact, it has not, although it does limit (or ban) such speech

when paid for with tax exempt dollars.

Whatever else may be said about the current tax law, it cannot be said that it

has silenced religious or anti-religious speech. One would have to inhabit a different

political universe than ours not to know that on many of the burning political and

moral issues of the day, religious voices play an important, even determinative, role.

Studies of recent elections show that even under current tax law, religious positions

on such issues correlate closely with voting behavior. See generally, M. Silk, ed., Religion and American politics: The 2000 Election In Context (2001). If there is a problem of a closing of the marketplace of ideas to moral or religious ideas, it is not evident to informed observers.

The American Jewish Congress often disagrees with the speech of religious leaders, sometimes even often insisting that religious speakers seek imprudently to inject religion into the sphere of government. But those disagreements do not justify

silencing religious speech, any more than religious objections to secular speech justify silencing it.

Current Law

Current law (26 U.S.C. § 501(c)(3)) exempts from income tax any ‘‘corporation organized and operated exclusively for religious, charitable, scientific or . . . education

purposes,’’ provided that ‘‘(a) no substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation; and (b) which

does not participate in, or intervene in . . . any political campaign on behalf of (or

opposition to) any candidate for public office.’’ Contributions to exempt organizations

are, more importantly, tax deductible. 25 U.S.C. § 170.

88

The ban on endorsing or opposing a candidate for public office is total and applies

equally to all 501(c)(3) tax exempt organizations. Religious groups labor under no

special disability. All 501(c)(3) organizations may not use a ‘‘substantial’’ portion of

their resources to influence legislation, and none can use any tax-exempt money to

intervene in a political campaign. Religious opponents of abortion and secular advocates of reproductive choice alike must use taxable dollars to endorse or oppose candidates. By contrast, the ban on ‘‘attempting to influence legislation’’ is less total.

An ‘‘insubstantial’’ amount of a secular or religious exempt organization’s assets

may be used to influence legislation.

Unfortunately, neither the Code nor the implementing regulations specify the demarcation line between substantial and insubstantial efforts at influencing legislation. The result is that exempt organizations live with a fair amount of uncertainty.

In practice, the IRS has not been particularly vigilant in enforcing this condition.

It appears to rely chiefly on self-policing, a policy which can give the unscrupulous

a substantial advantage over groups attempting good faith compliance with the law.

The late Reverend Dean Kelley, the National Council of Church’s expert on

church-state relations, once informed the undersigned that internal IRS documents

released to him under the Freedom of Information Act placed the line at somewhere

between 5 and 20 percent of an organization’s expenditures. This uncertainty makes

it difficult for exempt organizations to know whether to speak on a particular piece

of legislation, since they have no way of knowing whether that effort would put the

organization over the vague ‘‘substantial’’ threshold. Organizations have to decide

whether to be active in influencing legislation in February, lest come October they

would be silenced on a more important issue. H.R. 2357 would compound this confusion by extending the ‘‘substantiality’’ test to ‘‘supporting or opposing candidates,’’

without lending any greater precision to it.

Congress has provided an alternative to the uncertainty of the substantiality test

for secular 501(c)(3) organizations. They may elect to be covered by the so-called

Conable Amendment, 26 U.S.C. § 501(h), which, incorporating provisions of 26

U.S.C. § 4911, specifies amounts which may be spend on influencing legislation.

Churches may not so elect, 26 U.S.C. § 501(h)(5).

The exclusion of churches was not intended to discriminate against churches, nor

was it motivated by an animus against religious speech, nor the fear that encouraging religious organizations to influence legislation would endanger church/state

separation. The exclusion was inserted at the behest of churches, who wished to preserve their claim that Congress could not constitutionally tax churches, and surely

not condition exemption on limiting their religious speech.

Subsequent to the enactment of Conable, however, the Supreme Court has twice

held that religious institutions are not constitutionally exempt from taxation,

Jimmy Swaggert Ministries v. Bd. of Equalization, 493 U.S. 378 (1990); Bob Jones

University v. U.S., 461 U.S. 574 (1983). It has further held that conditioning exemption for 501(c)(3) organizations on limits on influencing legislation is not an unconstitutional condition. Regan v. Taxation With Representation, 461 U.S. 540 (1983);

Branch Ministries v. Rossoti, 211 F.3d 137 (D.C. Cir. 2000).

Although religious institutions had—and have—a substantial claim that the separation of church and state prohibits the state from taxing the church, for the moment-and for the foreseeable future-that claim is not recognized by the Supreme

Court. Consequently, Congress may want to reconsider the blanket exclusion of religious organizations from Conable coverage. Provided that Conable election remains

voluntary, it is hard to see why religious institutions should be automatically foreclosed from such an election.

As noted, the ban on the endorsement of candidates is total. Again, the prohibition applies equally to all organizations exempt from taxation under § 501(c)(3).

And, as noted, the courts have found this restriction constitutional even as applied

to religious organizations. Branch Ministries, supra; Christian Echoes National Ministry v. U.S., 470 F.2d 849 (10th Cir. 1972). As Branch Ministries pointed out, these

rulings are simply a routine application of the general rule that tax exemption is

a form of subsidy which the government need not extend to all subjects on which

people choose to speak, 211 F.3d at 143–44, citing Regan, supra, 461 U.S. at 548;

Cammarano v. U.S., 358 U.S. 498, 513 (1959).

Although Regan and Cammarano are free speech cases, adding the Free Exercise

Clause to the analysis changes nothing. Cf. Larsen v. Valente, 456 U.S. 258 (1982)

(religious speech subject to same restrictions as secular speech). The rule barring

a group from involving itself in a political campaign as a condition of receiving exemption is a rule of general applicability allowing for no individualized exceptions.

Under current law, such rules do not violate the Free Exercise clause. Smith v. Oregon Div. of Employment Security, 494 U.S. 872 (1990).

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Even if, as the AJCongress believes would be best, Smith were to be overruled,

and the law would return the older and sounder rule of Sherbert v. Verner, 374 U.S.

398 (1963), it would be necessary to demonstrate that a rule ‘‘substantially burdened’’ religious activity before the government would be obligated to offer any accommodation. The Supreme Court has held that while subjecting religious organizations to neutral tax rules makes religious speech marginally more expensive, it does

not ‘‘substantially burden’’ it as that term is used in constitutional law. Jimmy

Swaggert Ministries, supra, 493 U.S. at 391; Hernandez v. CIR, 490 U.S. 680, 700

(1989). Government is under no duty to exempt religious organizations from the limits contained in Section 501(c)(3).

In Regan, several concurring Justices observed that the restrictions of 26 U.S.C.

§ 501(c)(3) would be constitutional only if there were an alternative avenue of communication left open to exempt organizations. Later cases adopt this requirement.

Religious and other exempt organizations are not, however, without an effective and

adequate alternative. As the D.C. Circuit Court of Appeals has explained:

[T]he Church may form a related organization under section 501(c)4) of the

Code. Such organizations are exempt from taxation; but unlike their section

501(c)(3) counterparts, contributions to them are not deductible. . . . Although

a section 501(c)(4) organization is also subject to the ban on intervening in political campaigns . . . it may form a political action committee ‘‘PAC’’) that would

be free to participate in political campaigns. . . . (‘‘an organization described in

section 501(c) that is exempt from taxation under section 501(a) may, [if it is

not a section 501(c)(3) organization], establish and maintain such a separate

segregated fund to receive contributions and make expenditures in a political

campaign.’’)

At oral argument, counsel for the Church doggedly maintained that there can

be no ‘‘Church at Pierce Creek PAC.’’ True, it may not itself create a PAC; but

as we have pointed out, the Church can initiate a series of steps that will provide an alternate means of political communication. . . .

(Citations omitted.)

II. H.R. 2357 Unconstitutionally Prefers Religious Viewpoints

In addition to fixing a statute that is not broken-and in vague language that undermines, not advances, its stated purpose-H.R. 2357 is flat out unconstitutional. Although that is not the most serious flaw with the bill, it ought to be enough to condemn it. The House of Worship Political Speech Protection Act is a naked preference

for religious political speech over competing secular political speech. Under any view

of the Establishment, Free Speech and Press Clauses, such a preference is unconstitutional. No view of the Constitution would allow government to subsidize a religious group to oppose candidates who support gambling on the ground that the

Bible is opposed to it, but deny a subsidy to a secular organization to oppose such

candidates on secular grounds.

The thrust of the Supreme Court’s decisions over the last twenty years has been

to equate religious and secular speech, and to insist that identical rules apply to

both. See, e.g., Good News Club v. Milford Central School District, 121 S.Ct. 2093

(2001); Lamb’s Chapel v. Center Moriches School District, 508 U.S. 949 (1994);

Rosenberger v. Bd. of Rectors, University of Virginia, 515 U.S. 819 (1995); Board of

Educ. Westside Community Schools v. Mergens, 496 U.S. 226 (1990); Larsen v.

Valente, 456 U.S. 228 (1982). Many of those organizations and individuals who have

testified in support of H.R. 2357 have devoted much energy to establishing that

legal principle, insisting all the while that they do not seek any advantage for religious speech, but only to end discrimination against it. That position and support

for H.R. 2357’s preference for religious political speech cannot be squared.

The case most on point, dealing with a statute almost on all fours with H.R. 2357,

is Texas Monthly v. Bullock, 489 U.S. 1 (1989). There the Supreme Court invalidated a sales tax exemption for religious but not secular periodicals. The narrowest

holding of the Court is stated in the concurring opinion of Justice O’Connor, who

wrote:

In this case, by confining the tax exemption exclusively to the sale of religious

publications, Texas engaged in preferential support for the communication of religious messages. Although some forms of accommodation religion are constitutionally permissible . . . this one surely is not. A statutory preference for the

dissemination of religious ideas offends our most basic understanding of what

the Establishment Clause is all about and hence is constitutionally intolerable.

(Citations omitted)

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In a separate concurrence, Justice White put the result on grounds of freedom

of the press: The Texas law at issue here discriminates on the basis of the content of publications: it provides that ‘‘[p]eriodicals . . . that consist wholly of

writings promulgating the teaching of (a religious faith) . . . are exempted’’ from the burdens of the sales tax law. . . . Thus, the content of a publication

determines whether its publisher is exempt or nonexempt. Appellant is subject

to the tax, but other publications are not because of the message they carry.

This is plainly forbidden by the Press Clause of the First Amendment.

Subsequent to Texas Monthly, courts have uniformly invalidated sales tax exemptions for religious periodicals only on one or the other of these grounds. ACLU v.

Crawford,lllF.Supp.2dlll(E.D. La. 2002); Haller v. Commonwealth, 556 Pa.

289, 728 A.2d 351 (1999); Ahlburn v. Clark, 728 A.2d 449 (R.I. 1999); Thayer v.

South Carolina, 307 S.C. 6, 413 S.E.2d 810 (1997); Finlator v. Powers, 902 F.2d

1158 (4th Cir. 1990). Cf. In Re Springmoor, 479 N.C. App. 184, 479 S.E.2d 795 (1997)

(invalidating exemption of only religiously operated nursing homes from real property taxation). By a parity of reasoning, allowing a religious exempt organization

greater leeway to engage in political endorsements than competing secular organizations is unconstitutional.

The governing constitutional principle is neither technical nor obscure. It goes to

the heart of the constitutional arrangements for the relationship between church

and state. The government is required to be neutral between religious and secular

viewpoints, given the Establishment, Free Speech and Free Press Clauses. Current

tax law maintains that balance. So would a law permitting all exempt organizations

to intervene in campaigns, a law we do not think desirable. H.R. 2357, however, upsets the constitutional balance exactly as would a law that permitted secular but

not religious exempt organizations to endorse candidates. H.R. 2357 is unvarnished

viewpoint discrimination of the kind the Supreme Court has repeatedly condemned.

The American Jewish Congress does not subscribe to the view that government

may accommodate religion only where the Free Exercise Clause compels exemption,

a very narrow class of cases subsequent to the unfortunate decision in Employment

Division v. Smith, supra. Smith itself disclaims any such rule. But the sine qua non

of permissible accommodation is a substantial governmental burden on religious

practice. Here, there is none.

There is surely no burden on religious organizations that does not equally apply

to their secular counterparts. Remedying one but not the other burden invidiously

discriminates against speech on the basis of its viewpoint. Such discrimination violates core First Amendment, principles.

III. H.R. 2357 Is Extraordinarlily Poor Public Policy

If there is one lesson to be learned from repeated efforts at campaign finance reform, it is that political parties will accommodate themselves to whatever fund raising opportunities the law allows. Rather than politics driving fund raising, fund

raising has come to drive politics. So it was with PAC’s, so it was with soft money

and so it would be if religious organizations, alone among exempt organizations,

could intervene in political campaigns with ‘‘cheaper’’ tax-deductible dollars while

secular competitors had to pay for their endorsements with more ‘‘expensive’’ aftertax dollars.

Passage of H.R. 2357 would inevitably cause politics to be recast and redrawn

along religious lines, not as they are now, in an indirect, unspoken and therefore

uncertain, demographic sense (evangelicals are conservative, Jews liberal, Catholic

swing voters, and the like), but explicitly, as politicians and parties aligned and realigned themselves to gain favor of religious groups and access to their tax exempt

dollars. That would be a most unfortunate and unhappy development.

With a few exceptions, our Nation has avoided a religiously centered politics, even

as it has allowed religious groups full freedom to express themselves on the issue

of the day. To be sure, Alexander Hamilton unsuccessfully tried to organize a Christian Party to oppose Thomas Jefferson, the short lived Know-Nothing party was

called into being by Protestants to limit the power of Catholics, and the National

Reform Association unsuccessfully attempted to amend the Constitution so that it

acknowledged the nation’s Christian heritage.

These isolated examples call attention to the secular and ecumenical cast of American political parties. Surely for all of the twentieth century and continuing into the

twenty-first, this country has harbored no serious, significant or substantial political

party whose platform was religious, whose candidates and leaders were selected because they held approved religious beliefs or designated clerical office, and whose

members shared a common set of religious dogmas or rituals.

It takes no more than a glance around the world to see how fortunate we have

been. In countries with religiously based political parties and a politics riven with

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religious debate and differences, parties compete over which one more vigorously advances God’s agenda. Those differences are difficult to the point of the impossible

to compromise. Who dares compromise God’s command?

Other countries, to avoid this evil, have gone to the opposite anti-clerical extreme,

substantially restricting the liberty of religious groups to address political issues

and to participate in politics. The former countries are condemned to instability and

internal division. The latter are deprived of the moral insight religion brings to bear

on public issue. Neither is an attractive alternative. Neither is the American way.

Whether or not H.R. 2357 would, as we predict, lead to the creation of religious

parties, it would surely lead existing parties to jockey for the favor of organized religious groups who could provide the dollars modern political campaigns require. The

results would be unhappy, and far worse than whatever shortcomings inhere in the

present system.

IV. The Internal Revenue Service Should Clarify The Law

Although H.R. 2357 is unnecessary, unwise and unconstitutional, there is substantial room for improvement in the way that the Internal Revenue Service enforces Section 501(c)(3). Enforcement of the restriction on intervening in campaigns

is hardly aggressive and universal. Only the most egregious and public of violations

result in enforcement actions. Under such a lax enforcement policy, it is not surprising that those ‘‘caught’’ believe they are the victims of selective prosecution. Another consequence of under-enforcement is that conscientious and law abiding organizations are often asked by their members to intervene in campaigns in ways that

competing exempt organizations do with apparent impunity.

One reason for the relatively relaxed enforcement-beyond the Service’s understandable and commendable reluctance to challenge the speech of religious and

other not-for-profit organizations over rules some of whose parameters are uncertain-is that the penalties for a violation are so draconian. Loss of tax exemption is

the organizational equivalent of a death sentence. It had been hoped that the intermediate sanctions of 26 U.S.C. § 4495 might result in some leeway for the Internal

Revenue Service and hence more aggressive enforcement of the no-intervention rule,

but this has so far not happened. Perhaps Congress ought to consider anew the

question of graduated penalties for violations of the anti-intervention rules.

Second, a search of the Internal Revenue Service’s website turned up no publication setting out in plain English the Internal Revenue Service’s positions on what

constitutes influencing legislation or endorsing or opposing candidates. Some while

ago, the Internal Revenue Service did publish a helpful booklet for religious groups

(as it does for veterans organizations) but it was not widely disseminated and it cannot now be found on the IRS website (or at least the undersigned cannot find it,

which may be a very different thing).

The Service ought to consider ways to make its views on these issues more widely

and easily available to not-for-profits and especially smaller and less well-counseled

religious institutions. Doing so would not eliminate all disputes about the scope of

Section 501(c)(3), but it would eliminate much of the chilling effect generated by uncertainty and ignorance. Increased clarity would, we believe, dispel many of the

grievances giving rise to H.R. 2357.

Although various Revenue Rulings and internal training materials (the latter are

not binding law) make clear that a Section 501(c)(3) organization which has a longstanding position on a public policy issue need not refrain from expressing that view

because a campaign is underway, many organizations believe they are condemned

to silence during the never-ending campaign season. Similarly, the Internal Revenue Service has offered views on the much mooted and recurring question of when

employees and lay leaders of not-for-profit organizations can speak out in support

of or opposition to candidates even though their speech may be identified with their

organization (can a Rabbi announce personal political preference from the pulpit?),

but it is apparent that its views are not widely known.

Without endorsing every one of its interpretations, it seems fair to say that the

IRS’ views on these subjects are on the whole reasonable and practical-and go far

to meeting the objections which have given rise to the present legislative proposal.

Were they better known, there would be less impetus for legislation such as HR

2357. The IRS should cure this problem on its own.

Conclusion

The Committee should not favorably report H.S. 2357. It should reexamine whether religious groups should be permitted to elect under the Conable rules (Section

501(h)). It should also consider whether more moderate penalties for violations

would lead to better and more equal enforcement of Section 501(c)(3) restrictions.

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Finally, the IRS should undertake to make its understanding of the restrictions

which accompany 501(c)(3) status broadly accessible.

Statement of the Anti-Defamation League, New York, New York

f Opposing HR 2357 (‘‘Houses of Worship Political Speech Protection Act’’)

and H.R. 2931 (‘‘The Bright Line Act’’)

The Anti-Defamation League has long been a lead voice advocating for the separation of church and state. Founded in 1913 to ‘‘to stop the defamation of the Jewish

people and to secure justice and fair treatment to all citizens alike,’’ ADL has

worked tirelessly to fight anti-Semitism, racism, and bigotry (including religious intolerance), to advocate for good will and mutual understanding among Americans

of all creeds and races, and to safeguard the rights and liberties of all Americans.

To this end, and to the end of the general stability of our democracy, ADL strongly

advocates for the separation of church and state and the right to the free exercise

of religion.

ADL opposes H.R. 2357 (‘‘Houses of Worship Political Speech Protection Act ‘‘), introduced by Representative Jones, Jr., and H.R. 2931 (‘‘The Bright Line Act’’), introduced by Representative Crane. These legislative initiatives would amend federal

tax law to permit houses of worship to utilize tax-exempt contributions and other

resources to fund partisan political activity and candidates for political office.

Both bills are unconstitutional because each would give religious organizations,

specifically houses of worship, an advantage over non-religious organizations simply

because they are religious organizations. The bills fail each of the three most commonly used tests that the Supreme Court has articulated to determine whether a

statute runs foul of the Establishment Clause:

1) Under the standard articulated in Lemon v. Kurtzman (403 U.S. 602

(1971)), a statute is unconstitutional if it lacks a secular purpose, or if it has

the primary effect of advancing religion, or if it fosters excessive governmental

entanglement with religion. A statute which expressly selects houses of worship

for special treatment (and gives them benefits that other, non-religious nonprofits do not have) plainly lacks a secular purpose and advances religion over

non-religion. Statutes that give special advantages to religious organizations

simply do not pass constitutional muster. See Board of Ed. of Kiryas Joel Vill.

Sch. Dist. v. Grumet, 512 U.S. 687 (1994)

2) Under the no-endorsement standard, government may not advance religion

over non-religion. The Constitution ‘‘preclude[s] government from conveying or

attempting to convey a message that religion or a particular religious belief is

favored or preferred.’’ Wallace v. Jaffree, 472 U.S.38 at 70 (1985) (O’Connor, J.,

concurring in judgment)

3) Under the neutrality standard, government must be ‘‘neutral’’ among religions and between religion and non-religion. Everson, 330 U.S. 1 at 18 (1947).

See also Abington School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560,

1615, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring) (‘‘The fullest realization

of true religious liberty requires that government . . . effect no favoritism

among sects or between religion and nonreligion’’).

The plain effect of these bills is to give houses of worship—religious institutions—

a special advantage over non-religious non-profits. It is a cornerstone of Establishment Clause jurisprudence that the government cannot prefer religion over non-religion. Therefore, these bills are unconstitutional and we urge Congress to reject

them.

These bills, especially H.R. 2357, the House of Worship Free Speech Act, suffers

from another failing as well. Supporters of these measure wrongly argue that, under

current law, religious viewpoints in particular are being muzzled in the public

arena. That is simply not true. Houses of worship, like other 501(c)(3) non-profit organizations, are permitted to engage in a wide range of non-partisan voter participation and voter education initiatives. All 501(c)(3) non-profits, however, are expressly

prohibited from the sort of politicking that these bills would allow. To identify religious organizations as being unfairly silenced is both unfair and disingenuous.

f

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Baptist Joint Committee

Washington, DC 20002–5797

May 13, 2002

The Honorable Amo Houghton, Jr.

United States House of Representatives

Washington, DC 20515

Dear Mr. Chairman:

You are being asked to consider legislation that would allow houses of worship

explicitly to endorse or oppose candidates for public office, and even contribute

money and other resources to candidates and political parties, while maintaining

their tax-exempt status. We write to you in order to express our opposition to H.R.

2357 and H.R. 2931.

The ‘‘Houses of Worship Political Speech Protection Act’’ and ‘‘The Bright-Line

Act’’ may sound good at first but would ultimately pervert, not protect, houses of

worship. The First Amendment already creates protection for houses of worship by

setting boundaries between church and state. While we agree that houses of worship

need to speak out on the social and moral issues of the day, they already have that

freedom.

Preachers can and do speak out with impunity, even from the pulpit, on any

issue, and houses of worship may engage in some lobbying to advocate moral/ethical

positions. Houses of worship may encourage good citizenship among their members

by launching voter registration and education projects, conducting a nonpartisan

forum for the candidates and distributing the answers to candidate questionnaires.

Pastors and other church leaders, as individuals, can participate in the electoral political process as much as they wish, but nonprofits cannot participate in electioneering without jeopardizing their tax-exempt status under Section 501(c)(3).

Why is it so bad to allow houses of worship to endorse candidates or give political

contributions? Electioneering by churches would be highly divisive. For religious

leaders to seek to endorse and contribute money to candidates on behalf of the entire house of worship would be to drop a bombshell in the sanctuary of most congregations, especially Baptist churches. Worshipers in the pew do not need or want

religious leaders telling them how to vote or funneling tithes to the coffers of political parties.

Electioneering by houses of worship would compromise their prophetic witness.

Credibility and integrity of congregations would suffer with bad decisions of candidates they endorsed. Partisan groups would have increased incentives to use congregations as a conduit for political activity and expenditures, thus diminishing the

distinctive role of the church.Houses of worship could be turned into virtual political

action committees. These bills would provide an irresistible loophole for some to deduct political contributions by funneling them through houses of worship. It would

become the preferred way to make political donations. This would be a step backward in the quest for campaign finance reform and raise the stakes for exploitation

of the good name and resources of houses of worship.

In short, these bills would do houses of worship no favors. Anytime the wall of

separation between church and state is breached, religious liberty is threatened.

These bills would compromise church autonomy, turn pulpit prophets into political

puppets and politicize our houses of worship.

We encourage you to oppose ‘‘The Houses of Worship Political Speech Protection

Act’’ and ‘‘The Bright-Line Act.’’

Sincerely,

J. Brent Walker

Executive Director

K. Hollyn Hollman

General Counsel

RELIGIOUS LEADERS SAY: OPPOSE H.R. 2357 & H.R. 2931

Dear Representative,

We, the undersigned religious and denominational organizations, are writing to

urge you to oppose both H.R. 2357, ‘‘The Houses of Worship Political Speech Protection Act,’’ introduced by Rep. Walter Jones, and H.R. 2931, ‘‘The Bright Line Act,’’

introduced by Rep. Phillip Crane. Both of these bills would lead to partisan political

activity in our nation’s houses of worship.

Current federal law states that houses of worship, like other 501(c)(3) organizations, cannot legally engage in partisan political activities and retain their tax-exempt status. This provision of federal law has served as a valuable safeguard for

94

the integrity of both religious institutions and the political process. Both H.R. 2357

and H.R. 2931 would lift important safeguards, and allow houses of worship to use

their tax-exempt contributions for political purposes and to endorse candidates.

Religious leaders, denominational offices and faith-based organizations are

against H.R. 2357 and H.R. 2931 for many ethical reasons:

• Current law upholds the integrity of houses of worship. Churches,

synagogues, temples and mosques should not be used as political headquarters or as a means of partisan fundraising for political activities. Tying

churches to partisan activity demeans the institutions from which so many

believers expect unimpeachable decency.

• This bill is unwanted and unneeded by America’s clergy. In a recent

Gallup/Interfaith Alliance Foundation poll, a full 77% of clergy were opposed to their fellow clergy endorsing political candidates. Another poll conducted by The Pew Research Center for the People and the Press and The

Pew Forum on Religion and Public Life, found that 70% of Americans feel

that houses of worship should not come out in favor of one candidate over

another during political elections.

• The bill is predicated on false assumptions about existing law. Supporters of these bills have argued that their enactment is necessary to allow

religious leaders to speak out on issues of interest to their congregations.

The reality is that religious leaders have an absolute right to use their pulpit to address the moral issues of the day. The only things tax-exempt

houses of worship may not do is endorse or oppose candidates, or use their

tax-exempt donations to contribute to partisan campaigns. Current law simply limits groups from being both a tax-exempt ministry and a partisan political entity.

• This bill would open a dramatic loophole in the nation’s campaign

finance laws. Donations to houses of worship are tax deductible because

the government assumes that their work is contributing to the common

good of society, not a political party or a partisan campaign. As such, contributions to churches are tax deductible and donations to political candidates and parties are not. Therefore, these bills would create a significant

new loophole in our nation’s campaign finance laws with serious ethical and

legal implications.

For these reasons, we urge you to oppose H.R. 2357 and H.R. 2931.

Sincerely,

American Jewish Committee

American Jewish Congress

Anti-Defamation League

Baptist Joint Committee on Public Affairs

Central Conference of American Rabbis

Church of the Brethren Washington Office

Council of Khalistan

Friends Committee on National Legislation (Quaker)

General Board of Church and Society, United Methodist Church

Hadassah, the Women’s Zionist Organization of America

Interfaith Alliance Foundation, The

NA’AMAT USA

National Council of Churches of Christ in the USA

National Council of Jewish Women

Presbyterian Church (USA), Washington Office

Seventh-day Adventist Church, General Conference

Soka Gakkai International—USA Buddhist Association

The Congress of National Black Churches

Union of American Hebrew Congregations

Unitarian Universalist Association

Statement of James Bopp, Jr., Bopp, Coleson & Bostrom,

United Church of Christ Justice and Witness Ministries

Terre Haute, Indiana

f Thank you for the opportunity to submit written comments regarding the Internal

Revenue Code Section 501(c)(3) requirements for religious organizations and in support of H.R. 2357, the Houses of Worship Political Speech Protection Act, and H.R.

2931, the Bright-Line Act of 2001.

95

I am a practicing attorney with the law firm of Bopp, Coleson & Bostrom in Terre

Haute, Indiana. Since 1980, a significant portion of my law practice has involved

the representation of non-profit and religious organizations—including the National

Right to Life Committee and the Christian Coalition of America—regarding compliance with Internal Revenue Code Section 501(c)(3), Section 501(c)(4), and Section

527. I have represented non-profit organizations in both state and federal courts,

successfully challenging state laws that were an infringement on their constitutional

right of freedom of speech.

I am also the General Counsel for the James Madison Center for Free Speech (a

corporation recognized as tax exempt by the Internal Revenue Service under

501(c)(3) of the Internal Revenue Code), which advocates and promotes free speech

and association rights in the election law context through litigation, legislative analysis and testimony, comments on proposed rule-making by the Federal Election

Commission, and which publishes scholarly and popular articles.

Because of my developed expertise in federal constitutional law, I have provided

testimony on numerous occasions before federal and state legislative committees on

proposed election legislation and before the FEC on proposed regulations. Since

1996, I have served as the Chairman of the Election Law Subcommittee and the

Free Speech & Election Law Practice Group of The Federalist Society for Law &

Public Policy Studies.

Introduction

I am pleased to support H.R. 2357, the Houses of Worship Political Speech Protection Act, and H.R. 2931, the Bright-Line Act of 2001. The problem addressed by

these resolutions is illustrated when, on the one hand, people of faith who speak

about moral issues in public are accused of attempting to force their religion upon

others; and when, on the other hand, they address moral issues in church, they are

accused of engaging in politics. The Jeffersonian ‘‘wall of separation’’ doctrine, which

does not appear in the U.S. Constitution, has inspired a rather bold attempt to silence people of faith not only in the public square, but also in their houses of worship. This attitude is an unofficial but outspoken form of bias or discrimination

against people of faith.

A good example is the issue of abortion. When people of faith speak out against

abortion in the public arena, they are told not to force their religious views upon

others. When people of faith speak out against abortion in their churches, they are

told not to bring politics into the church. Opposition to abortion is interpreted as

support for pro-life political candidates and opposition to pro-abortion candidates,

even when the candidates’ names are not mentioned.

Sometimes churches are also threatened with loss of tax exempt status, and sometimes they are investigated by the Internal Revenue Service in order to determine

whether revocation of their exempt status is justified. Thus, the possible loss of tax

exempt status is used by those hostile to people of faith, to chill their right of free

speech, and silence them in their own houses of worship.

This bias against houses of worship has been codified in Section 501(c)(3) by the

prohibition against activities considered ‘‘political intervention’’ broadly interpreted

and enforced by the Internal Revenue Service. The root of the current problem with

the prohibition against political intervention by churches and other organizations

exempt under IRC § 501(c)(3) is: (1) the vague and overbroad definition of ‘‘political

intervention;’’ (2) the draconian penalties for violation of the prohibition; and (3) the

resulting chilling effect of the prohibition on churches who want to speak out about

the social and moral issues facing our nation.

I. The vague and overbroad definition of ‘‘political intervention’’ includes

much more than the use of express words in favor of or opposition to a candidate for public office.

Section 501(c)(3) tax exempt status is limited to organizations ‘‘which do not 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’’ (emphasis added). Treasury Regulation § 501(c)(3)–1(c)(3)(iii) provides:

The term candidate for public office means an individual who offers himself,

or is proposed by others, as a contestant for an elective public office, whether

such office be national, state, or local. Activities which constitute participation

or intervention in a political campaign on behalf of or in opposition to a candidate include, but are not limited to, the publication or distribution of printed

statements or the making of oral statements on behalf of or in opposition to

such a candidate.

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The prohibition on participation or intervention in a political campaign language

has been shortened for quick reference in customary usage to the phrase ‘‘political

intervention.’’

A. What is ‘‘political intervention’’?

‘‘Political intervention’’ constitutes any activity ‘‘influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any

Federal, State, or local public office or office in a political organization, or the election of Presidential or Vice Presidential electors.’’ 26 U.S.C. § 527(e)(2). ‘‘All activities that are directly related to and support the process of influencing

the selection, nomination, election or appointment of any individual to public office

and office in a political organization’’ are political intervention. Treas. Reg. § 1.527– 2(c)(1).

Although the Federal Election Commission has adopted a bright line test of what

constitutes ‘‘political intervention,’’ the IRS has not.1 Instead of a bright line test,

the IRS has adopted a ‘‘facts and circumstances’’ test: ‘‘[I]t is not feasible for the

Service to adopt the FEC ‘express advocacy’ standard,’’ because ‘‘[t]he language of

IRC 501(c)(3) indicated a much broader scope to the concept of participation or

intervention in a political campaign.’’ Thus, ‘‘there is no bright-line test,’’ and ‘‘all

the facts and circumstances must be considered.’’ Judith E. Kindell & John Francis

Reilly, Election Year Issues, in Exempt Organization Continuing Professional Education Technical Instruction Program for FY 2002 344, 346, 349 (2001) (hereinafter

‘‘Election Year Issues’’).

It has even been acknowledged that educational activities may be political intervention when using such a vague and overbroad test: ‘‘Educating the public is not

inherently inconsistent with the activity of impermissibly intervening in a political

campaign.’’ Treasury Advice Memorandum 8936002.

B. Specific activities.

For example, voter registration and GOTV activities are considered ‘‘political

intervention’’ by the IRS unless they are nonpartisan, done without regard to voter’s political preference, do not name any candidate or do not favor one candidate over

another, do not name a political party, and the materials only urge registering and

voting.

The preparation and distribution of voter guides is ‘‘political intervention’’ unless

they address a ‘‘wide variety’’ of issues, the position of the organization on the issues

is not indicated, and the voter guides are distributed broadly to the general public,

not a target audience. Revenue Ruling 78–248, 1978–1 C.B. 154; Election Year

Issues at 370–72.

Candidate forums are only permissible voter education if ‘‘all legally qualified per- sons’’ are included, a broad range of issues are covered, questions are posed by ‘‘a nonpartisan, independent panel of knowledgeable persons,’’ candidates are given an

equal opportunity to present their views, and the moderator states that the views

expressed are the views of the candidates, not the organization. Revenue Ruling 86–

95, 1986–2 C.B. 73; Election Year Issues at 372–75.

Even educational activities may be deemed ‘‘political intervention’’ if there is a use

of ‘‘code words’’ like ‘‘conservative,’’ ‘‘liberal,’’ ‘‘pro-life,’’ ‘‘pro-choice,’’ ‘‘anti-choice,’’

‘‘Republican,’’ or ‘‘Democrat.’’ Election Year Issues at 345. Further, any ‘‘coordination’’ of an otherwise permitted activity with a political committee or candidate constitutes ‘‘political intervention.’’ Treasury Advice Memorandum 9117001.

It is obvious that the expression of an opinion on any matter of public concern

may be deemed ‘‘political intervention’’ when such a vague and overbroad definition

is used. When political issues are inherently moral issues as well, houses of worship

are effectively excluded from the debate by such a vague and overbroad rule. When

the Internal Revenue Service uses an ‘‘all the facts and circumstances’’ test, the likelihood that any communication addressing social and moral issues will be found to

be ‘‘political intervention’’ is substantial.

II. There are draconian penalties for violation of the prohibition.

The prohibition against ‘‘political intervention’’ by organizations that are tax exempt under Section 501(c)(3) of the Internal Revenue Code is absolute. Not only will

a church that is deemed to have engaged in activities constituting ‘‘political intervention’’ lose its tax exempt status, there are taxes to be paid.

In 1987, Congress enacted several new provisions concerning the political campaign prohibition for 501(c)(3) organizations. The first of these was IRC 4955. Section 4955(a)(1) provides for an initial tax of ten percent of each political expenditure.

IRC 4955(b)(1) imposes an additional tax of 100 percent of each political expenditure

previously taxed and not corrected within the taxable period. There is no upper

limit on the tax that can be levied on the organization. IRC 4955(a)(2) imposes a

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tax of 21⁄2 percent of the political expenditure on any ‘‘organization manager’’ (e.g.,

priests, pastors and other officers of the organization) who agreed to make a political expenditure. Organizational managers who refuse to agree to all or part of the

correction are subject to a tax of fifty percent of the political expenditure. Election

Year Issues at 355.

Congress enacted Section 4955 because revocation for violation of the prohibition

on political campaign activity was viewed by some as an inappropriate remedy in

two situations. First, the penalty of revocation was disproportionate to the violation

in cases where the expenditure was small, the violation was unintentional, and the

organization subsequently had adopted procedures to assure that similar expenditures would not be made in the future. Second, in some cases, revocation would be

an ineffective remedy, particularly if the Section 501(c)(3) organization ceased operations after it diverted all of its assets to improper purposes. Election Year Issues

at 354.

Although Section 4955 penalties may be used as a type of ‘‘intermediate sanctions,’’ they may also be used in addition to revocation, as an additional deterrent.

Congress also enacted Section 6852, which provides that if such a violation occurs,

the Service may immediately determine the amount of income and Section 4955 tax

due from the Section 501(c)(3) organization. Section 7409 grants authority to the

Service to seek an injunction against a 501(c)(3) organization that flagrantly violates

the political campaign prohibition to prevent further political expenditures by the

organization.

Thus, the remedies include revocation of exemption, a ten percent tax, a 100 percent tax, a 21⁄2 percent tax against officers, an immediate assessment of tax due,

and injunction. These remedies have a chilling effect on churches that wish to address social and moral issues.

III. The result of the prohibition is a chilling effect on churches who want

to speak out about the social and moral issues facing our nation.

The First Amendment states: ‘‘Congress shall make no law . . . abridging the

freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’’ The First Amendment protects the four ‘‘indispensable democratic freedom[s].’’ Thomas v. Collins, 323 U.S. 516, 529–30 (1945).

Political expression is ‘‘at the core of our electoral process and of the First Amendment freedoms.’’ Williams v. Rhodes, 393 U.S. 23, 32 (1968). Further, ‘‘[I]t can hardly be doubted that the constitutional guarantee [of the First Amendment] has its

fullest and most urgent application precisely to the conduct of campaigns for political office.’’ Buckley v. Valeo, 424 U.S. 1, 14–15 (1976). ‘‘[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the

free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates.’’ Mills v. Alabama, 384 U.S. 214, 218 (1966).

Section 501(c)(3), as currently interpreted, effectively silences houses of worship

by prohibiting them from addressing those social and moral issues that are at the

center of public policy debate. In other words, Section 501(c)(3) only permits churches to discuss moral issues that don’ t have any impact on current public policy

issues. Such a rule marginalizes people of faith and makes houses of worship irrelevant to public discourse and debate. It is inherently discriminatory.

Even if very carefully orchestrated, any communication that might have an impact on an issue of public policy may be deemed ‘‘political intervention’’ by the IRS

under current law. All that is necessary is that a communication be found by the

IRS to ‘‘contain some relatively clear directive that enables the recipient to know

the organization’s position on a specific candidate or slate of candidates.’’ Election

Year Issues at 345–46. No wonder so many clergy and churches avoid addressing

any social or moral issues during an election year. No matter what the church’s communication is, it can be construed under the ‘‘all the facts and circumstances’’ test to be supporting all candidates who share the same or similar view, and opposing all candidates who hold a different view.

IV. How the proposed legislation will change Section 501(c)(3)

In order to properly understand the effect of the proposed changes on Section

501(c)(3) we must first look at the history of Section 501(c)(3).

A. The history of Section 501(c)(3)

Prior to 1954, there was no statutory provision prohibiting organizations described in the antecedents of IRC 501(c)(3) from engaging in political campaign activities. From the earliest days of our Republic churches have played a key role in

public life. Where moral issues and political issues collided, as with the abolitionist

movement, churches were frequently the forum for public discussion and debate.

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Many sermons were preached on such subjects central to our national discourse and

debate.

The current political campaign prohibition has a vague but unenacted antecedent.

What eventually became the Revenue Act of 1934, under which the lobbying restriction of IRC 501(c)(3) was first enacted, at one time contained a provision extending

the prohibition to ‘‘participation in partisan politics.’’ S. Rep. No. 73–558, 73d Cong.,

2d Sess. 26 (1934). The provision, however, was deleted in conference, so that only

the lobbying restriction remained. H.R. Conf. Rep. No. 73–1385, 73d Cong., 2d Sess.

3–4 (1934). In explaining its deletion, Representative Samuel B. Hill stated: ‘‘We

were afraid this provision was too broad.’’ 78 Cong. Rec. 7,831 (1934) (emphasis

added); Election Year Issues at 336. A fear that it now appears was well founded.

During the Senate consideration of what became the Revenue Act of 1954, Lyndon

Johnson, then Senate Majority Leader, added a floor amendment to provide that

IRC 501(c)(3) organizations may not ‘‘participate in, or intervene in (including the

publishing or distributing of statements), any political campaign on behalf of any

candidate for public office.’’ Johnson stated ‘‘. . . [t]his amendment seeks to extend

the provisions of section 501 of the House bill, denying tax-exempt status to not only

those people who influence legislation but also to those who intervene in any political campaign on behalf of any candidate for public office.’’ 100 Cong. Rec. 9,604

(1954). The amendment was accepted; no debate or discussion took place. The Conference Report (H.R. Conf. Rep. No. 83–2543, 83d Cong., 2d Sess. (1954) contains

no further discussion of the amendment. Election Year Issues at 337.

In 1969, a number of provisions were enacted concerning the treatment of private

foundations. Under one provision, an initial tax in an amount equal to ten percent

of each taxable expenditure and an additional 100 percent tax on each taxable expenditure previously taxed and not corrected within the taxable period was imposed

on private foundations. In addition, taxes were imposed on foundation managers

who agreed to the making of the taxable expenditure. IRC 4945. A taxable expenditure included any amount paid or incurred by a private foundation to influence the

outcome of any specific public election or to directly or indirectly carry on any voter

registration drives, unless certain requirements were met. IRC 4945(d)(2); Election

Year Issues at 337.

In 1987, Congress again amended the law applicable to charitable organizations,

this time specifically focusing on the prohibition on political campaign activity. Congressional concern appears to have been triggered by two occurrences. First, in

1986, an organization then exempt under IRC 501(c)(3), the National Endowment

for the Preservation of Liberty, was reported to have intervened in Congressional

campaigns, opposing the reelection of members who had not supported aid to the

Nicaraguan Contras. Second, questions had been raised about the use of ostensibly

educational 501(c)(3) organizations by politicians to promote their candidacy or potential candidacy. After hearings held by this Subcommittee and after it made its

recommendations, IRC 501(c)(3) was amended to clarify that the prohibition on political campaign activity applied to activities in opposition to, as well as on behalf

of, any candidate for public office, in accordance with the existing interpretations

of the prohibition in the regulations. Election Year Issues at 338.

B. How would H.R. 2357 change Section 501(c)(3)?

If H.R. 2357 were enacted, Section 501(c)(3) would be revised as follows:

(c) List of exempt organizations.—The following organizations are referred to

in subsection (a):

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for

public safety, literary, or educational purposes, or to foster national or

international amateur sports competition . . . and except in the case of an

organization described in section 508(c)(1)(A) (relating to churches), which

does not 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 and, in the case of an organization described in section 508(c)(1)(A), no substantial part of the activities of which

is 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.

Although the bill would not change the vague and overbroad definition of ‘‘political

intervention,’’ it would exempt churches from the absolute prohibition, and establish

a ‘‘no substantial part of the activities’’ standard for political intervention. This is

identical language to the restriction on legislative lobbying activities, thus it utilizes

familiar statutory language and interpretative precedents. It is not a bright line

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test, but a test that would take the chill out of occasional church pronouncements

on social and moral issues, and allow an insubstantial amount of political activities

by churches.

C. How would H.R. 2931 change Section 501(c)(3)?

H.R. 2931, the Bright-Line Act of 2001, would also give houses of worship some

breathing room. It would add a new subsection to Section 501(c)(3):

(p) EXPENDITURES BY CHURCHES, ETC., TO INFLUENCE LEGISLATION OR PARTICIPATE IN CAMPAIGN ACTIVITIES—

(1) EXPENDITURES TO INFLUENCE LEGISLATION—An organization

to which this subsection applies shall be denied exemption from taxation

under subsection (a) because a substantial part of the activities of such organization consists of carrying on propaganda, or otherwise attempting, to

influence legislation, but only if such organization normally makes lobbying

expenditures (as defined in section 4911(d)) for each taxable year in excess

of an amount equal to 20 percent of such organization’ s gross revenues for

such year.

(2) EXPENDITURES TO PARTICIPATE IN CAMPAIGNS—An organization to which this subsection applies shall be denied exemption from taxation under subsection (a) because such organization participates in, or intervenes in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public

office, but only if such organization normally makes expenditures for such

purpose for each taxable year in excess of an amount equal to 5 percent

of such organization’ s gross revenues for such year.

(3) AGGREGATE LIMIT—An organization to which this subsection applies shall be denied exemption from taxation under subsection (a) if the

aggregate of the expenditures described in paragraph (1) and the expenditures described in paragraph (2) which such organization normally makes

for each taxable year exceeds an amount equal to 20 percent of such organization’s gross revenues for such year.

(4) GROSS REVENUES—For purposes of this subsection, the term ‘gross revenues’ means the sum of—

(A) the organization’s gross income for the taxable year, and

(B) the aggregate contributions and gifts received by such organization during such year.

(5) ORGANIZATIONS TO WHICH SUBSECTION APPLIES—This subsection shall apply to any disqualified organization (as defined in subsection

(h)(5)) which is described in subsection (c)(3).

(6) AFFILIATED ORGANIZATION—If, for any taxable year, 2 or more

organizations to which this subsection applies are members of an affiliated

group of organizations (as defined in section 4911(f)(2)——

(A) paragraphs (1), (2), (3), and (4) shall be applied by treating such

group as 1 organization, and

(B) if such group exceeds the expenditure limitation of paragraph (1),

(2), or (3), each organization to which this subsection applies which is

a member of such group shall be treated as not described in subsection

(c)(3).

The preceding sentence shall not be applied so as to treat an organization

which is not (without regard to the preceding sentence) exempt from tax by

reason of paragraph (1), (2), or (3) as being so exempt.

(b) EFFECTIVE DATE—The amendment made by subsection (a) shall apply

to taxable years beginning after the date of the enactment of this Act.

As stated in its short title, the primary feature of this resolution is to provide a

bright line test for compliance. Houses of worship would be permitted to use 20%

of their gross receipts for lobbying, and 5% of their gross receipts for activities considered ‘‘political intervention.’’ Although the vague and overbroad definition of ‘‘political intervention’’ is not changed by this resolution, it does give churches some

breathing room before loss of tax exemption, or penalties, would apply.

A secondary feature of this resolution is the ‘‘affiliated organizations’’ provision in

subsection (6). This provision would provide additional protection to individual

churches that are affiliated with other similarly exempt organizations. When an individual church’s gross receipts and political expenditures would fail the proposed

bright line test, the affiliation provision would require the examiner to use the

grand totals of gross receipts and political expenditures of all affiliated organizaVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00103 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
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tions. This would provide remarkable protection for churches in denominations, that

would be unavailable to unaffiliated churches. It would also provide an increased

safe harbor for churches with affiliated charitable organizations, schools, missions,

or other affiliated organizations under Section 4911(f)(2).

Conclusion

It is time to stop the IRS and others from using Section 501(c)(3) to silence houses

of worship. H.R. 2357 and H.R. 2931 will go a long way in accomplishing that goal.

Clergy and churches should be able to make public statements about social and

moral issues without threat of investigation, loss of tax exempt status, or assessment of taxes and penalties.

H.R. 2357 permits an insubstantial amount of activity that would otherwise be

prohibited as ‘‘political intervention.’’ It allows churches to discuss moral issues

without threat of sanctions by the IRS. The threshold established by H.R. 2357,

namely ‘‘no substantial part of the activities,’’ is the same standard applied to legislative lobbying and is sufficiently clear and well established as to remove the threat

of sanctions for public communications on social and moral issues by churches.

H.R. 2931 provides a bright line test that would make the determination of a violation more objective. By providing an explicit limit of 5% of gross receipts by a

house of worship and its affiliated organizations it may insulate clergy and churches

from being singled out for investigation and penalties for a single act considered

‘‘political intervention’’ under the ‘‘all facts and circumstances’’ test of the Internal

Revenue Service.

Both resolutions return clergy and houses of worship to some measure of the freedom of speech they enjoyed from the founding of this nation to 1954 when the absolute prohibition of ‘‘political intervention’’ went into effect.

For these reasons, I support the Houses of Worship Political Speech Protection

Act and the Bright-Line Act of 2001.

Statement of the Hon. Chet Edwards, a Representative in Congress from

fthe State of Texas

Chairman Houghton, Ranking Member Coyne, and Members of the Subcommittee:

Thank you for allowing me to submit a statement regarding H.R. 2357,The

Houses of Worship Political Speech Protection Act, and H.R. 2931, the Bright Line

Act. I appreciate your interest in the marriage of religion and politics, and I am glad

to see you are giving it the thoughtful consideration it deserves.

Let me begin by asking one of the basic questions of America’s experiment in democracy: what it the proper role of churches and houses of worship in our government?

The Founding Fathers clearly considered this an important question and placed

their answer squarely at the beginning of the Bill of Rights, asserting, ‘‘Congress

shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’’ For over two centuries, those 16 words have worked to protect our

religious freedom, and in my opinion, make religious liberty the crown jewel of

America’s experiment in democracy. As students of human behavior, and human

history, our forefathers understood that, politicians, if allowed, could not withstand

the temptation to use religion as a means to their own political ends.

Martin Luther King, Jr. faced this same question and voiced his answer well. He

said: ‘‘The church must be reminded that it is not the master or the servant of the

state, but rather the conscience of the state.’’ (Strength to Love, p. 47,1963) He knew

that the independence of religious institutions during the civil rights movement

gave them the freedom to speak out against government policies—unconstrained by

the potential repercussions.

As a person of faith, I believe religion has a profound impact on our private values, our personal lives and our public life as a nation. However, one of the principles

that keeps our government and our religious institutions so strong is that each has

been allowed to flourish separately. To see how religious institutions and government operate together, I suggest you look at countries across the Middle East. I

humbly submit that we in this country keep our own model rather than following

theirs.

Currently, federal law prohibits all 501(c)(3) organizations, including churches

and houses of worship, from legally participating in partisan political activities

without forfeiting their tax-exempt status. In essence, once an organization participates in political activities, it can no longer be considered tax-exempt. I believe this

is an important safeguard measure, which protects the autonomy of all religious orVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00104 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
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ganizations. However, provisions in both H.R. 2357 ad H.R. 2931 will enable houses

of worship to be excluded from this prohibition and to use their tax-exempt contributions for political activities and endorse candidates. I cannot emphasize how dangerous this could be for our government and for our religious institutions—it could

ultimately compromise the integrity of both. Do we really want to create a system

where elected officials will use our churches and houses of worship as a tool in partisan fighting and politics?

Religious freedom is of the utmost importance to me, and I urge the Subcommittee to consider the threat that these bills pose to that pillar of American democracy.

Statement of the Islamic Supreme Council of America

fIn the Name of God, Most Merciful, Most Compassionate

Chairman Houghton and distinguished Members of the Subcommittee:

The Islamic Supreme Council of America (ISCA) is a religious organization dedicated to providing practical solutions for American Muslims, based on the rulings

of classical Islamic jurisprudence. We work proactively with government and civil

institutions, both domestically and abroad, to present the ideological standpoint of

traditional Muslims throughout the world.

We respectfully express to you today our opposition to HR 2357 and HR 2931,

which would amend the Internal Revenue Service Code of 1986 to permit churches

and other houses of worship to engage in political campaigns.

In restricting the political participation of religious organizations, the current tax

codes embody the will of our Founding Fathers and reflect their wise and sound

judgment not to converge religious institutions and the political system of this nation.

As traditional Muslims, we know that classical Islamic doctrine is in harmony

with the views articulated by the framers of our Constitution in this matter.

According to Islamic tradition, our houses of worship are for God and for God

alone. Though this makes mosques the central focus of public life in Islam, it also

places them outside the sphere of worldly discourse. Emphasizing the purely spiritual nature of the mosque in Islam, the Prophet Muhammad (s) said, ‘‘And a prayer

followed by a prayer with no worldly talk during the gap between them will be recorded in the good deeds of believers.’’

The sanctity of the mosque as a place for remembrance of God and His worship

is emphasized time and again in the Holy Quran. In one place it was revealed,

‘‘When the call is made for prayer on Friday, then hasten to the remembrance of

God and leave off trading; that is better for you, if you know’’ (62:9). Trade here

refers to all that involves the worldly life—not just buying and selling but the business of power-seeking and politics. Thus the emphasis is that, in responding to the

call for prayer, worldly concerns are set aside as one enters the mosque. Once prayers are completed, the affairs of this world may be picked up again outside the

mosque as the next verse stresses: ‘‘And when the prayer is finished, then may ye

disperse through the land, and seek of the Bounty of God . . .’’ (62:10).

For this reason, the 2nd Caliph of the Prophet, Umar ibn al-Khattab, set aside

an area near the mosque and said, ‘‘Whoever wishes to talk of this world . . . or

raise his voice should go to that area.’’

Throughout the ages, the leading thinkers of the Islamic world have warned

against turning the mosque into a political forum. These men and women valued

the sanctity of the mosque and knew that allowing it to become a political venue

would diminish its holy status. They also knew that doing so would divide the members of a congregation along political lines, turning a house of worship into an arena

for political wrangling, in-fighting, and all manner of intrigues.

We believe the same holds true for churches and synagogues, too. What sincere

believer would like to see the pulpit of his church or the bima of her temple turned

into a stump for political lobbying, fundraising or vote seeking? Who would like to

see their pulpit turned into the floor of Congress?

While there are surely members of every faith community that would, in their

short-sighted pursuit of greater political influence, welcome the increased lenience

proposed by the authors of these two bills, we believe that the problems created

thereby far outweigh any possible benefits.

The tragic events of September 11 are a grim reminder of the ultimate consequences of transforming religion into a political tool. It is an extreme example,

but one which should not be forgotten in the present debate.

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As Muslims, we are all too aware of the perils posed by politicizing religion. As

Americans, we are also well aware of the prudent provisions our Founding Fathers

instituted to prevent the marriage of politics and religion. As people of faith, we

urge the Subcommittee to leave those barriers intact, to leave that door closed and

to ensure that America’s mosques, synagogues, chapels and churches remain places

of worship, not of politics.

Statement of the Hon. Walter B. Jones, a Representative in Congress from

Thank you.

the State of North Carolina

f Mr. Chairman, Ranking Member Coyne, members of the Committee, thank you

for holding this hearing to discuss whether the 1st Amendment to the U.S. Constitution guarantees the freedom of speech to our churches, synagogues, and mosques.

Specifically the question is: Should the Internal Revenue Service be able to determine what is appropriate speech in our nation’s houses of worship, and then revoke

the tax-exempt status if it feels those religious institutions have ‘‘crossed the line’’?

Mr. Chairman, if this were 1953, there would be no need for this oversight committee hearing, because at that time our nation’s churches, synagogues and mosques

had no restrictions on speech! But in 1954, one Senator, Lyndon Johnson—without

a debate—attached an amendment to a tax bill that for the first time since the writing of the Constitution restricted the political speech of all 501 c (3) organizations.

I find the restriction on the speech of houses of worship to be particularly troubling, and that is what this bill attempts to address.

The First Amendment to the Constitution says, ‘‘Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof. ’’ I

firmly believe that threatening the tax exempt status of those houses of worship

whose speech the IRS deems has ‘crossed the line into politics’ has the effect of denying their right to the free exercise of their religious beliefs.

HR 2357 would take the Internal Revenue Service out of the business of telling

houses of worship what is and what is not appropriate speech, by restoring the

rights they enjoyed prior to 1954.

Just as non-profit organizations—including churches—are currently allowed to expend an ‘‘insubstantial’’ amount of their funds on lobbying activities, they would be

allowed to expend an ‘‘insubstantial amount’’ on political activity. Just as they are

allowed to speak out on the moral ramifications and endorse bills before Congress,

ministers, priests, and rabbis would to be able to speak out about candidates on the

ballot.

Is speaking out on candidates, or engaging in an insubstantial amount of political

activity a good thing? People of faith will obviously disagree. A great many good

things, like the abolition of slavery for instance, would not have happened without

the political involvement—through the churches—of people of faith.

But the appropriate level—if any—of political speech should be decided by the

church and its parishioners, not the Internal Revenue Service.

Examples of the chilling effect of the Internal Revenues Service’s policing of

speech in the pulpit are not difficult to find.

When Floyd Flake, a former member of congress and pastor of Allen A.M.E.

Church in Harlem, asked his parishioners to vote for Al Gore in the 2000 Presidential race, he did so believing—right or wrong—that his moral code, grounded in

his religious faith, led him to believe that voting for Mr. Gore was the right thing

to do. Not just right politically, but right morally.

What was his reward for speaking out on the practical political expression of his

religious beliefs? The Internal Revenue Service threatened to revoke his tax-exempt

status, and required Floyd Flake to sign a document promising to cease politicking

from the pulpit.

A minister of the Gospel being required by an agency of the United States Government to cease speaking out on issues which his morality compels him to address!

That is as chilling as it is wrong.

In my own district, for example, I know of a constituent who asked his priest to

remind the parishioners during the homily (sermon) that George Bush was pro-life,

and that Al Gore was pro-choice. The priest replied that he felt he could not make

that statement—not because he did not feel it was important, but because he feared

that speaking out on the practical political application of his church’s moral code

might jeopardize his church’s tax status. Consider what that priest was saying:

Preaching the practical application of your church’s faith risks incurring the wrath

of the IRS!

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Unfortunately, the examples go on. The practical result is nothing less than a violation of free speech and the free exercise of religion guaranteed by the Constitution.

To add insult to injury, Mr. Chairman, the law is not applied in an even manner.

Press accounts are full of candidates in some churches prior to elections, asking

for—and receiving—the endorsement of the minister. Yet the same IRS that gagged

Floyd Flake turns a blind eye to alleged violations of the law that are printed in

the newspapers for all the world to see!

The IRS should treat all the churches, synagogues, and mosques equally. There

are only two ways to do so: Either have armies of IRS agents and informants, permanently monitoring the speech and activities of every house of worship, or by getting the IRS out of the religious speech business.

Mr. Chairman, I submit the only way to fairly apply the law, in a manner consistent with our national and constitutional values, is to get the IRS out of the business of telling ministers, priests, and rabbis, what is appropriate speech.

Therefore, we need to eliminate the Johnson Amendment. The IRS should not be

the ‘‘Speech Patrol’’. Our spiritual leaders should feel free to speak on moral and

political issues of the day, including talking about candidates for public office and

where they stand on those issues. If a minister believes that one candidate best reflects that church’s moral beliefs, the IRS should be in no position to deter him or

her from saying so.

Mr. Chairman, we as members of the United States Congress take an oath to defend the constitutional rights of the American people. I hope this committee will

move a bill that will return the 1st Amendment rights to our spiritual leaders. It

is the right thing to do.

Thank You.

f Maryland Bible Society

Baltimore, Maryland 21202

Ways and Means:

As a United Methodist Minister for 35 years and an Executive Director of a religious nonprofit, I am totally against any church or religious group using funding

to do campaigning and electioneering for political candidates through churches or

ministries. This is absolutely the wrongheaded way of doing business. Discussion of

issues and candidates freely yes, but the use of nonprofit funds for such political

and partisan agendas is absolutely stupid. I totally oppose any religious institution

or church using any funding as a nonprofit tax exempt body for political purposes

of pushing the candidacy of any political party.

Thank you.

Rev. Dr. Raymond T. Moreland

f Executive Director

National Council of Nonprofit Associations

Washington, DC 20005–1525

May 28, 2002

The Honorable Amo Houghton, Chairman

Committee on Ways and Means

Subcommittee on Oversight

U.S. House of Representatives

1136 Longworth House Office Building

Washington, DC 20515

via e-mail (hearingclerks.waysandmeans@mail.house.gov) and facsimile ((202) 225–

2610)

Re: Comments for the May 14, 2002 Hearing on the Review of Internal Revenue

Code Section 501(c)(3) Requirements for Religious Organizations

Dear Representative Houghton:

Thank you for the opportunity to submit a written statement for consideration by

the Subcommittee and for inclusion in the printed record of the May 14, 2002 hearing on the Houses of Worship Political Speech Protection Act (H.R. 2357) (the ‘‘Political Speech Protection Act’’) and the Bright-Line Act of 2001 (H.R. 2931) (the

‘‘Bright-Line Act’’). These comments are submitted by and on behalf of the National

Council of Nonprofit Associations (NCNA).

NCNA is a membership organization of state and regional associations of nonprofits that represent and serve thousands of local nonprofits throughout the country. Our members work at the state and local level to provide training and technical

104

1 NCNA is supporting current efforts to eliminate the distinction between grassroots and direct lobbying under Code section 4911(c)(4) and to raise the lobbying expenditure limits contained in Code section 4911(c)(2).

assistance to improve the operations and effectiveness of organizations while promoting the value of the nonprofit sector.

NCNA strongly believes in the need for a united nonprofit sector, and opposes any

legislative or regulatory act that seeks to divide the nonprofit sector based on subject matter and philosophy. Both the Political Speech Protection Act and the BrightLine Act are intended to—and will—divide the sector.

These bills allow churches to engage in activities not permitted of all other

501(c)(3) organizations. Such distinctions are unnecessary and harmful to the sector.

Whether nonprofits should be prohibited from engaging in electioneering activities

(participating in, or intervening in, political campaigns on behalf of a candidate) is

a legitimate question. However, neither the Political Speech Protection Act nor the

Bright-Line Act address it. Instead, they allow churches and other church-related

organizations only to participate in campaigns.

In addition, the Bright-Line Act would permit churches to expend greater expenditures to influence legislation than section 501(h) of the Internal Revenue Code of

1986, as amended (the ‘‘Code’’), allows all other organizations. Churches could spend

up to twenty (20) percent of its gross revenues to influence legislation, while all

other organizations that make the 501(h) election (‘‘Electing Charities’’) are limited

to a maximum expenditure of the lesser of $ 1,000,000 or twenty (20) percent of the

first $ 500,000 of gross revenues, plus lesser percentages of its remaining gross revenues. In addition, while Electing Charities can spend no more than twenty-five (25)

percent of its lobbying expenditures on grassroots lobbying,1 the Bright-Line Act

does not contain a similar limitation for churches. Such disparities based on type

of organization should not be endorsed and enacted into law.

One of the stated justifications for these bills is that churches are refraining from

engaging in legally permissible activities due to fear of losing their tax-exempt status for engaging in an impermissible activity. However, the solution is not to change

the law, but to better educate the churches about permissible activities. NCNA and

its network of state associations are currently engaging in these educational efforts,

along with other national organizations such as the Alliance for Justice and Charity

Lobbying in the Public Interest.

Thank you for this opportunity to comment. Please let me know if you have any

questions or would like any further information on my comments, or if NCNA can

be of any further assistance to the Subcommittee on Oversight of the Committee on

Ways and Means.

Sincerely,

Audrey R. Alvarado

f Executive Director

Statement of Kay Guinane, Counsel and Manager, Community Education

Center, OMB Watch

OMB Watch is a nonprofit organization that promotes government accountability

and citizen participation in public issues and decision-making. We appreciate the

opportunity to comment on HR 2357 and HR 2931, on our own behalf and in the

interest of the nonprofit sector.

OMB Watch works with and through the nonprofit sector because of its vital place

in communities and our faith that the sector can play a powerful role in reinforcing

our democratic principles. Because of our commitment to strengthening the voice of

the nonprofit sector in public policy debates we fully support the right of all nonprofits to speak out publicly on the moral and political issues of the day, regardless

of their religious character. This right is protected the First Amendment to the Constitution and current tax law. There is nothing in current law to stop religious congregations or any other 501(c)(3) organization from fully exercising this right.

1. Current Law is Adequate to Protect the Right of Religious Organizations

to Speak on Public Policy Issues

Proponents of HR 2357 and HR 2931 claim passage is necessary to protect the

right of religious organizations to speak on moral and political issues, and that its

impact would only be to free clergy to speak on issues and their principles of faith.

However, the tax code specifically limits the definition of prohibited ‘‘political’’ to

speech the support of or opposition to a candidate for office. This hardly puts a muzVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00108 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
105

zle on clergy that wish to address the morality of abortion, the death penalty or any

other public issue. HR 2357 and HR 2931 ignore current legal protections for speech

by 501(c)(3) organizations.

Current Law Allows Unlimited 501(c)(3) Time and Money for:

• Commentary on public issues from the pulpit

• Public education campaigns

• Publication of pamphlets, research, newsletters and analysis

• Litigation

• Comment on proposed regulations

• Participation in agency and commission proceedings

• Nonpartisan voter education, registration and get out the vote activity

Limitations on 501(c)(3) Legislative Lobbying

• All public charities, including religious organizations, can lobby at the local,

state or national level as long as it is not a ‘‘substantial part’’ of its overall

activities.

Prohibition on Supporting or Opposing Candidates for Office

• The tax code prohibits support or opposition to candidates, but there are

no regulations that clearly define what activities are allowable and what

are not. The IRS uses a ‘‘facts and circumstances’’ test to determine whether a 501(c)(3) has in fact engaged in partisan electioneering. This lack of

clarity leaves all 501(c)(3)s, not just religious organizations, without clear

guidance.

• Religious organizations can create 501(c)(4) affiliates that can endorse or

oppose candidates. Contributions to these organizations are not tax deductible.

Clergy, Members of Congregations and Others Can Act as Individuals

• Any person, acting on their own behalf, can endorse candidates, volunteer

on campaigns, or even run for public office, as long as they do not use the

resources of a 501(c)(3) organization.

Based on the above, we believe there is no need for new legislation to protect the

right of religious organizations to speak on issues.

2. HR 2357 and HR 2931 Would Turn Religious Organizations Into Soft

Money Conduits

The proposed bills would have an enormous financial impact on campaign finance.

They would create an enormous soft money loophole, and turn religious congregations into conduits for campaign contributors seeking to avoid campaign finance

laws. They would allow religious congregations to spend money and use their institutional resources for a wide range of partisan political activity, from operating

phone banks to running ads on radio or TV.

• The soft money problem would be exacerbated by two factors:

• Donations to 501(c)(3) organizations are tax deductible and

Religious organizations are not required to file IRS Form 990, the annual information return filed by most 501(c)(3) organizations. Since there is less public accountability, it would be impossible to know the extent of the use of religious organizations as conduits for unregulated campaign contributions, or to know who is contributing and what candidates they support or oppose.

This is clearly contrary to the intent of Congress is passing the Bipartisan Campaign Finance Reform Act earlier this year, and for that reason alone is sufficient

justification to defeat these bills.

3. HR 2357 and HR 2931 Discriminate Against Non-religious 501(c)(3) Organizations

If free speech rights of 501(c)(3) organizations are to be extended, they should be

extended fairly, to all public charities, not just religious organizations. By limiting

new rights to congregations, the proposed legislation unduly discriminates against

other charities that can be equally concerned with the moral and political issues of

the day. There is no rational justification for such a distinction.

Conclusion

All 501(c)(3) organizations share the same experience with the current lack of

clarity of what constitutes prohibited partisan electioneering. If, as is claimed by the

106

proponents of this legislation, the problem is the chilling effect this lack of clarity

has, the uneven enforcement that results, the solution should be fashioned to fit the

problem. HR 2357 and HR 2931 go well beyond what is needed to bring clarity to

the law. If, on the other hand, the sponsors of these bills believe that tax deductible

dollars should be used for candidate campaigns, they should clearly state why, and

allow for a debate on that issue.

f People for the American Way

Washington, DC 20036

May 10, 2002

House of Representatives

Washington, DC

Dear Representative,

On behalf of the more than 500,000 members and supporters of People For the

American Way, we are writing to urge you to oppose H.R. 2357, the so-called

‘‘Houses of Worship Political Speech Protection Act.’’ This bill threatens religious liberty by turning America’s houses of worship into partisan political operations.

H.R. 2357 flies in the face of federal tax law, which clearly states that houses of

worship, like all other 501(c)(3) organizations, cannot legally engage in partisan politics and still retain their tax-exempt status. This law safeguards the integrity of

both religious institutions and the political process.

H.R. 2357 is based on the false assumption that existing law does not allow religious leaders to speak out on issues pertinent to their congregations. Claims that

existing law would have silenced the religious community on issues such as abolitionist and civil rights movements are simply not true. Religious leaders currently

use their moral authority to address current issues. They are prevented, however,

from endorsing or opposing candidates, and using their tax-exempt donations to contribute to partisan campaigns.

Finally, H.R. 2357 is unnecessary, and unwanted by America’s clergy. Supporters

of this bill erroneously claim that there is a clamoring within the religious community for radical changes to existing tax law pertaining to houses of worship. In actuality, a recent Gallup poll found that 77% of clergy were opposed to clergy endorsing

political candidates.

Please join us in opposing H.R. 2357.

Sincerely,

Ralph G. Neas

President

Stephenie Foster

f Director of Public Policy

Statement of William J. Murray, Chairman, Religious Freedom Coalition

The Religious Freedom Coalition commends Congressmen Phil Crane (R–IL) and

Walter Jones (R–NC) for trying to alleviate the present intolerable situation in

which clergymen and their congregations fear to express publicly any political views

or even opinions about moral issues such as abortion, because these may be perceived as political. This climate of fear, which is exactly what the First Amendment

was created to prevent, is caused by uncertainty about what is or is not permissible

for a clergyman to say without having the church’s tax exempt status taken away.

As things stand now, the guidelines are so unclear that it is just up to the discretion of IRS bureaucrats to decide who is in violation. There is evidence that these

rulings by the IRS are selectively and unfairly enforced, targeting those who express

conservative views while ignoring others whose liberal views are favored.

Congressman Crane’s Bright Line Act of 2001 (H. R. 2931) and Congressman

Jones’ Houses of Worship Political Speech Protection Act (H. R. 2357) would help

restore First Amendment rights to America’s churches and synagogues.

America had a long history of free speech in her houses of worship, beginning

with Revolutionary War era preachers who spoke out for freedom and encouraged

the founding of the new country. It was largely in the churches where the abolitionist movement began, as religious people stirred up the conscience of the nation

about the evils of slavery. In the first half of the twentieth century, clergymen spoke

out fearlessly on many social issues and they warned of the dangers of murderous

fascism and communism.

107

The era of free speech came to an ignoble end in 1954 when Senator Lyndon

Johnson inserted the ban on political speech as a little noticed floor amendment to

another bill. There were no hearings on this amendment, nor does the Congressional

Record indicate that any explanation was ever given for this ban. There was a behind the scenes explanation though; Johnson was being criticized by a conservative

Texas pastor. To silence his critic, he slipped in a law that clearly violates the spirit

of the Constitution.

It’s true that the law was ignored when Martin Luther King and other black pastors led peaceful civil rights demonstrations in the 1960’s. If it had been strictly enforced, Dr. King and other church leaders could have been silenced. In fact, the law

was largely ignored until the early 1990’s, when Democrats realized they could follow the example of LBJ and use it against political opponents.

During Bill Clinton’s 1992 presidential campaign, the Church at Pierce Creek in

Conklin, New York sponsored a newspaper ad that criticized Clinton for his stand

on abortion. In retaliation, the church had its tax exempt status revoked. Yet when

first Bill Clinton and then later Al Gore campaigned in churches, there was hardly

a word said from IRS officials. Preacher and former Democrat Congressman Floyd

Flake invited candidate Gore to speak at his Allen A.M.E. Church in Queens, New

York. From behind the pulpit Flake told the congregation, ‘‘This should be the next

president of the United States.’’ Was Rev. Flake or his church punished in any way?

Well, he did get a ‘‘caution’’ from the IRS, but that was all.

While this was a clear violation of the law, the actual wording of the tax code

is so vague that IRS officials may interpret it any way they please. It is not necessary to name a candidate or political party to get in trouble. All that is necessary

is that the IRS finds a given communication ‘‘contains some relatively clear directive

that enables the recipient to know the organization’s position on a specific candidate

or slate of candidates.’’ In other words, suppose a certain candidate is well known

to be in favor of unlimited abortion, homosexual marriage, or anti-Semitism. If a

pastor in an election year chooses to address such moral issues, is that an implicit

rejection of the candidate and therefore a ‘‘political statement?’’ It can be, if the IRS

so decides.

Religious organizations deserve the clarity of knowing exactly what political activity is acceptable and allowed by law. It should not be left up to some bureaucrat

to interpret the law and determine if a religious institution is in violation, thus losing their tax exempt status. We believe that either the Crane or the Jones bill will

remove confusion from sanctioned and unsanctioned activities by establishing a

clear set of standards and bringing proper enforcement.

f Topeka, Kansas 66605–2086

Honorable Bill Thomas

Chairman, Committee on Ways and Means

U.S. House of Representatives

Washington, D.C.

Phone: (202) 225–3625

Fax: (202) 225–2610

E–Mail: contact.waysandmeans@mail.house.gov

Ref: Comments on The Houses of Worship Political Speech Protection Act (HR 2357)

and the Bright Line Act of 2001 (HR 2931)

Dear Chairman Thomas:

Please accept these comments on HR 2357 and HR 2931. The nonprofit sector has

a vital place in communities with this sector playing a powerful role in reinforcing

our democratic principles. Please strengthen the voice of the nonprofit sector in public policy debates and support the right of all nonprofits to speak out publicly on

the moral and political issues of the day, regardless of their religious character. As

you know, this right is protected the First Amendment to the Constitution and current tax law. There is nothing in current law to stop religious congregations or any

other 501(c)(3) organization from fully exercising this right.

1. Current Law is Adequate to Protect the Right of Religious Organizations to

Speak on Public Policy Issues

Proponents of HR 2357 and HR 2931 claim passage is necessary to protect the

right of religious organizations to speak on moral and political issues, and that its

impact would only be to free clergy to speak on issues and their principles of faith.

However, the tax code specifically limits the definition of prohibited ‘‘political’’ to

speech the support of or opposition to a candidate for office. This hardly puts a muzVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00111 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
108

zle on clergy that wish to address the morality of abortion, the death penalty or any

other public issue. HR 2357 and HR 2931 ignore current legal protections for speech

by 501(c)(3) organizations.

Current Law Allows Unlimited 501(c)(3) Time and Money for:

Commentary on public issues from the pulpit

Public education campaigns

Publication of pamphlets, research, newsletters and analysis

Litigation

Comment on proposed regulations

Participation in agency and commission proceedings

Nonpartisan voter education, registration and get out the vote activity

Limitations on 501(c)(3) Legislative Lobbying

All public charities, including religious organizations, can lobby at the local, state

or national level as long as it is not a ‘‘substantial part’’ of its overall activities.

Prohibition on Supporting or Opposing Candidates for Office

The tax code prohibits support or opposition to candidates, but there are no regulations that clearly define what activities are allowable and what are not. The IRS

uses a ‘‘facts and circumstances’’ test to determine whether a 501(c)(3) has in fact

engaged in partisan electioneering. This lack of clarity leaves all 501(c)(3)s, not just

religious organizations, without clear guidance. Religious organizations can create

501(c)(4) affiliates that can endorse or oppose candidates. Contributions to these organizations are not tax deductible.

Clergy, Members of Congregations and Others Can Act as Individuals

Any person, acting on their own behalf, can endorse candidates, volunteer on campaigns, or even run for public office, as long as they do not use the resources of a

501(c)(3) organization.

Based on the above, I believe there is no need for new legislation to protect the

right of religious organizations to speak on issues.

2. HR 2357 and HR 2931 Would Turn Religious Organizations Into Soft Money

Conduits

The proposed bills would have an enormous financial impact on campaign finance.

They would create an enormous soft money loophole, and turn religious congregations into conduits for campaign contributors seeking to avoid campaign finance

laws. They would allow religious congregations to spend money and use their institutional resources for a wide range of partisan political activity, from operating

phone banks to running ads on radio or TV.

The soft money problem would be exacerbated by two factors:

Donations to 501(c)(3) organizations are tax deductible and Religious organizations are not required to file IRS Form 990, the annual information return filed by

most 501(c)(3) organizations. Since there is less public accountability, it would be

impossible to know the extent of the use of religious organizations as conduits for

unregulated campaign contributions, or to know who is contributing and what candidates they support or oppose.

This is clearly contrary to the intent of Congress is passing the Bipartisan Campaign Finance Reform Act earlier this year, and for that reason alone is sufficient

justification to defeat these bills.

3. HR 2357 and HR 2931 Discriminate Against Non-religious 501(c)(3) Organizations

If free speech rights of 501(c)(3) organizations are to be extended, they should be

extended fairly, to all public charities, not just religious organizations. By limiting

new rights to congregations, the proposed legislation unduly discriminates against

other charities that can be equally concerned with the moral and political issues of

the day. There is no rational justification for such a distinction.

Conclusion

All 501(c)(3) organizations share the same experience with the current lack of

clarity of what constitutes prohibited partisan electioneering. If, as is claimed by the

proponents of this legislation, the problem is the chilling effect this lack of clarity

has, the uneven enforcement that results, the solution should be fashioned to fit the

problem. HR 2357 and HR 2931 go well beyond what is needed to bring clarity to

the law. If, on the other hand, the sponsors of these bills believe that tax deductible

dollars should be used for candidate campaigns, they should clearly state why, and

allow for a debate on that issue.

109

Thank you for the opportunity to bring these remarks to your attention. Mindful

of the enormous responsibilities which stand before you, I am,

Yours sincerely,

f Robert E. Rutkowski

Soka Gakkai International-USA Buddhist Association

Washington, DC 20004

May 13, 2002

Rep. Amo Houghton, Chairman

Attn: Kimberly A. Reed, Esq.

U.S. House of Representatives

Committee on Ways and Means Oversight Subcommittee

Washington, DC 20515

Dear Rep. Houghton,

I am writing to express our opposition to both H.R. 2357 ‘‘The Houses of Worship

Political Speech Act’’ introduced by Rep. Walter Jones, and H.R. 2931, ‘‘The Bright

Line Act’’ introduced by Rep Phillip Crane. Both bills would have the undesirable

and corrupting effect of bringing partisan political activity into our nation’s religious

institutions.

Religious voices have spoken out consistently and at times passionately to provide

both guidance and prophetic warning concerning the affairs of our nation. It is a

role that has served both our nation and our churches well. Present law provides

well for this function. To make our churches centers of partisan activity would be

to undermine the moral authority of these essential voices.

Furthermore, the proposed legislation would have the effect of creating a significant loophole in our nation’s campaign finance laws. At present, those who contribute to our religious organizations may deduct those donations from their taxes,

because these 501(c)(3) organizations are understood to be working for the general

welfare of society. Allowing church funds to support partisan causes would so confuse the nature of these institutions as to erode the ethical basis for tax-exemption.

From the events of the past year, we have witnessed with horror and anger how

those who seek to advance their political agenda can manipulate religion and religious symbols. Let us learn from this example and promote the health of both our

religious institutions and our political discourse by protecting the integrity of our

voices of conscience.

Speaking on behalf of the 300,000 US members of our Buddhist community, I assure you that we as individuals of faith want to bring our voices and our ideas into

the public square of this nation. We believe we can do this best under existing law

and ask that you oppose H.R. 2357 and H.R. 2931.

The Soka Gakkai International-USA is a culturally diverse Buddhist association

with more than 80 centers located throughout the country. Its community-based activities invite a shared commitment to the values of peace, culture and education.

Sincerely,

Bill Aiken

f Director of Public Affairs

Union of Orthodox Jewish Congregations of America

Washington, DC 20036

May 10, 2002

Chairman Amo Houghton

Ranking Member William J. Coyne

& Members of the

Committee on Ways & Means,

Subcommittee on Oversight

1136 Longworth Building

Washington, DC 20515

Dear Chairman Houghton, Ranking Member Coyne and Members of the Subcommittee,

We write to you on behalf of the Union of Orthodox Jewish Congregations of

America—this nation’s largest Orthodox Jewish umbrella organization, representing

nearly 1,000 synagogues across America—to express our serious concerns over H.R.

2357, ‘‘The Houses of Worship Political Speech Protection Act,’’ and H.R. 2931, ‘‘The

Bright Line Act,’’ which are the subjects of your May 14 hearing. While noble in

their goals, both of these bills in their current forms would allow partisan political

110

pressures to be exerted upon our synagogues and all other houses of worship in the

United States.

As you are aware, current federal law provides that houses of worship, like other

501(c)(3) organizations, may not engage in partisan political activities and retain

their tax-exempt status. This provision of federal law has served to insulate religious institutions from the political process in important ways. While we strongly

advocate for a vigorous role for religious institutions in our nation’s public life, both

H.R. 2357 and H.R. 2931 would remove from the law the most critical legal provision that keeps America’s houses of worship at arm’s length from the rough and

tumble of political contests.

Supporters of these bills contend that their enactment is necessary to allow religious leaders to speak out on issues of interest to their congregations. However, current law grants religious leaders an absolute right to use their pulpits to address

the moral issues of the day. Tax-exempt houses of worship may not endorse or oppose candidates, or use their tax-exempt donations to contribute to partisan campaigns. Without this clear legal prohibition, clergy and/or their congregations may

well be pressured by candidates for office or congregational leaders to explicitly support a political candidacy with no recourse but to extend that support or risk offending the candidate or leader whose support the religious institution needs for its core

mission.

We agree with the proponents of H.R. 2357 and H.R. 2931 that the Internal Revenue Service must not be allowed to meddle in the missions of America’s houses of

worship and must not be allowed to selectively enforce the provisions of 501(c)(3)

against some churches but not others. But we believe that these goals are better

achieved by this Subcommittee’s oversight of the I.R.S., not by altering the legal status quo in the manner proposed by H.R.2357 and H.R.2931. We would welcome the

opportunity to discuss with you these matters and possible alternative avenues of

addressing them should you or the sponsors of these bills wish to do so.

Thank you for considering our views on this important matter. Please do not hesitate to call upon us for any assistance we may render in your deliberations.

Sincerely,

Harvey Blitz

Richard B. Stone

Rabbi T. Hersh Weinreb

f Nathan J. Diament

Statement of William Wood, Charlotte, North Carolina

It is fascinating that there are hearings on the 501(c)3 status of churches and

their ability to engage in political speech. On the one hand, every perversion, foul

word, and form of pornography passes as ‘‘free speech’’ under the pretense that no

one dare tread on this liberty. Yet ‘‘free speech’’ is not so free in the province and

domain of religious institutions. The first Amendment did not suggest that there

was ‘‘free speech’’ except for churches and pastors. Yet somehow we have interpreted

‘‘freedom of religion’’ to have both speech prohibitions and religious prohibitions

through IRS regulations. This paper approaches the entire subject of IRS regulation

from the standpoint of why is political speech restricted at all in a church? How has

‘‘freedom OF religion’’ been converted to ‘‘freedom FROM religion’’ in the political

sphere by the use of IRS code?

A more preliminary investigation as to whether or not a 501(c)3 designation, and

IRS regulation is in order.

‘‘Separation of church and state today goes beyond the simple non-coercion approach of the founders. What appears to be happening is that government (e.g.,

the defendant in the Good News Club case) appears to be affirmatively hostile

to religion. Many people rightly sense three things: (1) the exclusion of religion

from the public square threatens liberty by stunting the formation of moral consciences; (2) the exclusion of religion also threatens liberty by requiring government to use government power to enforce secular norms of morality; and (3) the

exclusion of religion in the name of neutrality is false and discriminatory when

the government then chooses to endorse and promote a secular morality that is

offensive to the very people excluded from the debate. As applied, the notion of

the wall of separation between church and state, rather than removing governVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00114 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
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1Wendall Hall. March 28, 2001

2Sherbert v. Verner, 374 U.S. 398, 402 (1963) citing Cantwell v. Connecticut, 310 U.S. 296,

3033Sherbert at 402 citing Torcaso v. Watkins, 367 U.S. 488

4Sherbert at 402 citing Fowler v. Rhode Island, 345 U.S. 67

5Sherbert at 402 citing Murdock v. Pennsylvania, 319 U.S. 105; Follett v. McCormick, 321

U.S. 573; cf. Grosjean v. American Press Co., 297 U.S. 233 6 Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 881–82 (1990); Yoder,

406 U.S. at 233 (1972); Sherbert v. Verner, 374 U.S. 398, 402 (1963). 7West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

8 Ephesians 6:12

ment from the morality game, just picks certain winners and losers, a result that

the founders sought to avoid.’’1

‘‘The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.2 Government may neither compel affirmation of a repugnant belief; 3 nor penalize or discriminate against individuals or

groups because they hold religious views abhorrent to the authorities; 4 nor employ

the taxing power to inhibit the dissemination of particular religious

views.’’ 5

Our ‘‘American’’ legal system and government have in fact done exactly that

which has been prohibited. We have enacted special IRS rules, regulations, and procedures, under the guise of a ‘‘501’’ et. al. status, for churches. Our founding fathers,

many of them men of faith, would have seen this as a direct assault on the First

Amendment. With ‘‘free speech’’ in America, anything goes, but with Freedom of Religion, ONLY that endorsed, approved, and stamped with the IRS 501 approval

qualifies.

Yet there is no ‘‘compelling state interest’’ for regulating the political speech of

churches through backdoor means, through a 501, or any other IRS status;

‘‘[T]he Supreme Court has applied ‘‘strict scrutiny’’ to government actions burdening free exercise of religion, requiring the government to show that its action

serves a compelling state interest and is the least restrictive means for achieving

the government objective . . .’’ 6 ‘‘If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters of opinion

or force citizens to confess by word or act their faith therein.’’ 7

Yet this continued encroachment on ‘‘political speech’’ and restriction on ‘‘endorsing political candidates’’ is precisely what the IRS designations aim to assert. As if

to imply that in a DEMOCRACY the people hearing a message from the pulpit are

too stupid, too frail, or too intimidated to exercise an opinion contrary to the utterances from the pulpit. These restrictions are simple anti-Christ[ian] exercises of restriction on free speech by banning certain types of speech by a religious institution.

Of course under threat of losing their tax-exempt status. I am constantly amazed

by the ‘‘ACLU’s’’ (I question how ‘‘American’’ they really are) incessant attacks on

anything even remotely resembling Christianity, yet proclaiming that perversions

such as NAMBLA (the North American Man Boy Love Association who believes in

homosexual sex with little boys by 8 years old) as ‘‘Free Speech.’’ Apparently there

are few if any restraints on free speech AS LONG AS IT DOES NOT OCCUR IN

A CHURCH!

What if a pastor, with sincere conviction and belief, were to speak a particularly

pointed message against a particular politician, or a particular bill in the context

of;

For we wrestle not against flesh and blood, but against principalities, against

powers, against the rulers of the darkness of this world, against spiritual

wickedness in high places.8

What of those times when a pastor, near election time, considers the particular

actions of a legislator, where that legislator has endorsed a particularly reprehensible proposition? Say for example, the partial birth abortion debate where a baby’s

head is exposed from the womb, stabbed in the head with a sharp object, and then

its brains are sucked out until the head collapses. What if a minister of a faith considers this a particularly reprehensible evil that must be spoken against, from the

pulpit, naming specifically those individuals, considering them ‘‘rulers of darkness’’

or practicing ‘‘spiritual wickedness in high places’’? What of a Bill introduced in that

would allow for homosexual marriages, or the right to consortium with animals, or

with children such as that NAMBLA espouses, or other reprehensible legislation.

Must they IGNORE their conscience, and their religious beliefs, and the tenets of

their faith to satisfy an IRS that would now DICTATE this is impermissible speech?

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9 1 Timothy 2:1–4 10 Constitutional rights, such as liberty, are not suitable objects for taxation or encumbrances. West Virginia v Barnette, 319 US 624; US v Euge, 444 US 707. 11 Reynolds v. U.S., 98 U.S. 145, 163 (1878) 12Thomas Jefferson, letter to Justice William Johnson, June 12, 1823, The Complete Jefferson, p.322

Why is the IRS, an arm of the Federal government, entangled in the regulation of

religion to dictate and determine what is acceptable political speech? Is this not a

‘‘breach’’ in the fictitious ‘‘wall of separation’’?

Or the reverse, where a particular politician or legislator is openly praised

through ‘‘supplications, [public] prayers . . . and giving of thanks . . .’’

‘‘I exhort therefore, that, first of all, supplications, prayers, intercessions, and

giving of thanks, be made for all men; For kings, and for all that are in

authority; that we may lead a quiet and peaceable life in all godliness and honesty. For this is good and acceptable in the sight of God our Saviour . . .’’ 9

So we now have codified provisions, that based on the honest, sincere, rights of

conscience, free exercise of religion, and freedom of speech where these ideals may

be attacked. And where men and women of conviction or virtue may have their

speech silenced BECAUSE of their religious affiliation which allows them the ‘‘taxexempt’’ status.

How can we have ‘‘free speech’’ and ‘‘freedom of religion’’ with a few IRS bindings

and shackles on religious speech? WHY do we use the IRS to regulate supposedly

‘‘free’’ speech in the ‘‘free exercise of religion’’? 10

What ‘‘Separation of Church and State’’?

We have erected anti-Christ[ian] barriers to religion in America under the fraudulently constructed guise of ‘‘Separation of Church and State’’. This often quoted

phrase is used as an excuse to ATTACK every display of anything founded upon

the Judeo-Christian Biblical beliefs. Yet it is a LEGAL FRAUD!

Thomas Jefferson WAS NOT IN THE COUNTRY FOR THE CONSTITUTIONAL

DEBATES OVER THE FIRST AMENDMENT MAKING EXCERPTS FROM A LETTER OF HIS VOID. ‘‘Of [the Constitutional] convention Mr. Jefferson was not a

member, he being then absent as minister to France.’’ 11 In fact, as noted in the US

Supreme Court case just quoted from, Jefferson ‘‘expressed his disappointment at

the absence of an express declaration insuring the freedom of religion.’’ Somehow

Jefferson’s idea of ‘‘freedom OF religion’’ has been twisted and perverted into a legal

fiction almost demanding ‘‘freedom FROM religion’’ in politics. Our legal system has

inappropriately given weight to the anti-Christ[ian] ‘‘separation of church and state’’

phrase. In according so much ‘‘authority’’ to this phrase, equal weight must be given

to the remaining letters lest the legal system finally seen as declaring open war on

Judeo-Christian beliefs. Most especially one in which Jefferson strictly forbid the

use of his own letters as a source of Constitutional interpretation;

‘‘On every question of construction [of the Constitution] let us carry ourselves

back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out

of the text, or intended against it, conform to the probable one in which it was

passed.’’ 12

Even more distressing and exposing the passionate anti-Christ[ian] perspective of

the modern ‘‘American’’ legal system, and the proponents of the often taken out of

context ‘‘separation of church and state’’ are the sheer number of state legislatures

whose Constitutions openly endorsed Judeo-Christian principles AFTER THE

FIRST AMENDMENT WAS PASSED. Mysteriously, they found no conflict in their

own Constitutional constructions;

Massachusetts; First Part, Article II (1780) ‘‘It is the right as well as the duty

of all men in society, publicly, and at stated seasons, to worship the SUPREME

BEING, the great Creator and Preserver of the universe. . . The governor shall

be chosen annually; and no person shall be eligible to this office, unless. . .he

shall declare himself to be of the Christian religion.’’; Chapter VI, Article I (1780)

‘‘[All persons elected to State office or to the Legislature must] make and subscribe the following declaration, viz. ’I, llllllllll, do declare, that I

believe the Christian religion, and have firm persuasion of its truth. . .’ ’’

New Hampshire; Part 1, Article 1, Section 5 (1784) ‘‘. . .the legislature . . .

authorize . . . the several towns . . . to make adequate provision at their own

expense, for the support and maintenance of public protestant teachers of piety,

religion and morality. . .’’; Part 2, (1784) ‘‘[Provides that no person be elected

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13 Jaffree v. Board of School Comm. of Mobile Co., 554 F. Supp. 1104, 1128 (1983) 14Wallace v. Jaffree, 472 U.S. 38, 52 (1985) 15 ‘‘[N]o understanding of the eighteenth century is possible if we unconsciously omit, or consciously jam out, the religious theme just because our own milieu is secular.’’ . . . ‘‘[R]eligion

was a fundamental cause of the American Revolution.’’—Mitre and Sceptre, Oxford University

Press, 1962. 16Wallace v. Jaffree, 472 U.S. 38, 52 (1985) 17 Common Law is the traditionally accepted means of interpreting the US Constitution consistent with the intent of the framers. The following are judicial authority for the proposition that Christianity is part ofthe common law in the United States: Shover v.State,

10 Ark. 259 (1850); State v. Chandler, 2 Har. 553 (Del. 1837); State v. Bott, 31 La. Ann. 663

(1879); Pearce v. Atwood, 13 Mass. 324 (1816); Lindenmuller v. People, 33 Barb. 548 (N. Y.

1861); Updegraph v.Comm., 11 5. & R. 394 (Pa. 1882); Charleston v. Benjamin, 2 Strob. 508

(S. C. 1846); Bell v. State, 1 Swan 42 (Tenn. 1851); Grimes v. Harmon, 35 Ind. 198 (1871); Melvin v. Easley, 52 N. C. 356 (1860); Judefind v. State, 78 Md. 510, 28 Atl. 405 (1894). 18 U.S. v. MacIntosh, 283 U.S. 605 (1931) citing Holy Trinity Church v. United States 143 U.S.

457, 470, 471 S., 12 S. Ct. 511 19 U.S. v. MacIntosh, 283 U.S. 605 (1931) 20 City of Boerne v. Flores, 521 U.S. 507 (1997)

governor, senator, representative or member of the Council] who is not of the

protestant religion.’’

Pennsylvania; Article IX, Section 4 (1790) ‘‘that no person, who Acknowledges

the being of a God, and a future state of rewards and punishments, shall, on

account of his religious sentiments, be disqualified to hold any office or place of

trust or profit under this commonwealth.’’

Tennessee; Article VIII, Section 1 (1796) ‘‘. . .no minister of the gospel, or

priest of any denomination whatever, shall be eligible to a seat in either house

of the legislature . . .’’; Section 2 ‘‘. . . no person who denies the Being of God,

or a future state of rewards and punishments, shall hold any office in the civil

department of this State.’’

Are we as American people to believe that Massachusetts, New Hampshire, Pennsylvania, and Tennessee endorsed Judeo-Christian principles in their Constitutions

but somehow ratified the US Constitution with this implicit ‘‘freedom FROM religion’’ as practiced in the legal system today? Or what of the other colonies who already had Constitutions with similar provisions BEFORE the adoption of the US

Constitution and then did not set about to immediately change their Constitutions?

The question for every person of faith in this country is why there is such a passionate hatred for Christianity and Judeo-Christian beliefs that this country was

founded upon? And why there has been such a concerted effort to encroach upon

the domain of the church by REGULATING A CHURCH’S POLITICAL SPEECH.

Even other legal scholars, and Federal Judges know of the outright legal FRAUD

perpetrated on the Christian faith in America. Judge Brevard Hand, a Federal District Judge stated the ‘‘Supreme Court erred in its reading of history.’’ 13 In fact,

after this rather embarrassing expose, the US Supreme Court left off relying on the

intent of the framers, clearly demonstrating their anti-Christ[ian] bent and re-created the original Legal Fraud under a principle called the ‘‘crucible of litigation.’’ 14

As applied in this case, the ‘‘crucible of litigation’’ in laymen’s terms is translated

to mean that; whether we have constructed an anti-Chrit[ian] fraud or not, we will

not back down from our improper interpretation of the historical foundations 15 of

this country’s Christian heritage. In fact, in analyzing this case, Rhenquist noted;

‘‘But the greatest injury of the ‘‘wall’’ notion is its mischievous diversion of

judges from the actual intentions of the drafters of the Bill of Rights. The ‘‘crucible of litigation,’’ is well adapted to adjudicating factual disputes on the basis

of testimony presented in court, but no amount of repetition of historical errors in judicial opinions can make the errors true. The ‘‘wall of separation

between church and State’’ is a metaphor based on bad history, a metaphor

which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.’’ 16

America was founded as a Christian nation,17 ‘‘one nation under God,’’ with coins

that read ‘‘In God We Trust.’’ Before the US Supreme Court, and the US legal system became so antagonistic toward Christianity, it declared ‘‘[w]e are a Christian

people 18 according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God.’’ 19

The US Supreme Court, in all of its anti-Christ[ian] zqeal, has recently struck

down the Religious Freedom Restoration Act 20 insisting that Congress had violated

the separation of powers doctrine. Yet it has ignored its previous precedents to enVerDate 11-MAY-2000 01:17 Aug 15, 2002 Jkt 010199 PO 00000 Frm 00117 Fmt 6633 Sfmt 6621 W:\DISC\80331.XXX txed01 PsN: txed01
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21Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989). 22 ‘‘[O]fficial immunity doctrine, which ‘‘has in large part been of judicial making ‘‘Doe v. McMillan, 412 U.S. 306, 318–319 citing Barr v. Matteo, 360 U.S. at 569. Yet this concept was rejected by Mr. Thomas Jefferson as well when he stated ‘‘It is error [or abuse] alone which needs

the support of government. Truth can stand by itself.’’ 23Stephens, School, Church and State (1928) 12 MARQ. L. REV. 206 24 ‘‘A (government) may not impose a charge for the enjoyment of a right granted by the federal constitution.’’ Murdock v Pennsylvania, 319 US 105; 113. 25 Black’s Law Dictionary (2000 abridged edition) p. 1060 and 1061 26 Black’s p. 1061 27 Black’s p. 841 28 Black’s p. 195 29 Ibid. 30 Ibid. definition 3.

sure the legal fraud; Congress ‘‘remains free to alter what [this Court has] done;’’ 21

and the Judiciary has enacted its own legislation to guarantee that it can break the

law at will 22 by giving itself ‘‘immunity.’’ Yet there is no rush in the Judiciary to

abandon its own self-legislated immunity to break the law as it sees fit (all the

while somehow declaring the violating the law must be some form of ‘‘judicial function’’).

Until the unprecedented attack on Christian morals, values, and beliefs in the US

Legal system in the last 40 +/- years, it was well understood that ‘‘[c]hristianity and

democracy are not separable if democracy is to persist.’’ 23

And WHY do we use the IRS to regulate supposedly ‘‘free’’ speech in the ‘‘free exercise of religion’’? 24

Why attack the Christian Foundations of America?

Many of those (though unfortunately not all), who wage war on the Christian

foundations of this country do so out of ignorance, or a predisposition to creating

and generating more government power and control. Most judges and elected representatives do not consciously conceive of ways to undermine the country’s foundations and values. In fact, the greatest problem in all three branches of government

is a lack of basic principles and understandings that our founding fathers were well

aware of.

In evaluating the recent Wallace v. Jaffree opinion undermining the Religious

Freedom Restoration Act, an interesting legal philosophy emerges—, the replacement of unalienable rights with civil rights. The court relied heavily on ‘‘Civil

Rights’’ contained in the 14th Amendment. In the last 40+ years there has been an

accelerated use of ‘‘Civil Rights’’ as a means to undermine and destroy our Found- er’s concept of unalienable rights.

This whole concept of unalienable rights comes from the Declaration of Independence where our Founding Fathers sought to throw off the bands of tyranny and oppression;

‘‘We hold these Truths to be self-evident, that all Men are created equal, that

they are endowed by their Creator with certain unalienable rights . . .’’

Inalienable (or unalienable) rights ‘‘cannot be transferred or surrendered’’ 25 and

include ‘‘natural rights’’ which ‘‘exist independently of rights created by government

or society, such as the right to life, liberty, and property,’’ 26 as well as ‘‘natural law’’

which contains ‘‘legal and moral principles . . . [or] divine justice rather than from

legislative or judicial action; moral law embodied in principles of right and

wrong.’’ 27

And then the 14th Amendment was created, after the 13th Amendment (which

abolished slavery) noting;

‘‘No State shall make or enforce any law which shall abridge the privileges or

immunities of any citizen of the United States; nor shall any State deprive any

person of life, liberty, or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.’’

The 14th Amendment became the basis of Civil Rights, or Civil law for the United

States. Civil Rights are ‘‘the individual rights of personal liberty guaranteed by the

Bill of Rights and by the 13th, 14th, 15th, and 19th Amendments, as well as by legislation . . . Civil rights include especially . . . the right of due process, and the right

of equal protection under the law.’’ 28 Civil Liberty is a part of Civil Rights denoting

‘‘freedom from UNDUE governmental interference or restraint [as determined by

government of course]. This term usually refers to freedom of speech or religion.’’ 29

Civil Rights are also part of the Civil Law which is ‘‘the body of law IMPOSED BY

THE STATE, as OPPOSED to moral law. ’’ 30 One of the signers of the Constitution

noted the intention of American law stating ‘‘[f]ar from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two

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31 James Wilson, The Works of the Honourable James Wilson (Philadelphia: Bronson and

Chauncey, 1804), Vol. I, p. 106 32Thomas Jefferson to J. Cartwright, 1824 33Thomas Jefferson: Notes On Virginia, 1782 34 Benjamin Franklin, The Writings of Benjamin Franklin, Jared Sparks, editor (Boston: Tappan, Whittemore and Mason, 1840), Vol. X, p. 297, April 17, 1787

sciences run into each other. The divine law, as discovered by reason and the moral

sense, forms an essential part of both.’’ 31

As the 14th Amendment is applied today, it is in direct opposition to the ‘‘Creator

endowed unalienable rights’’ guaranteed by our originally enacted Constitution.

Where there are ‘‘creator endowed unalienable rights’’ there is the requirement to

determine the Creator who endowed them so that the rules are clear. This principle

was widely understood and clearly known throughout the early history of our country, until it came under direct attack by the lawyers in black robes in our courts

today. As Thomas Jefferson noted ‘‘[n]othing. . . . is unchangeable but the inherent

and inalienable rights of man.’’ 32 To the extent that they are changeable, such as

under Civil Rights interpretations by the lawyer led courts, they are no longer

unalienable rights. The clearest example of this can be seen with the whole abortion

debate. A brand new ‘‘Civil’’ right was created to allow the killing of babies on demand, even to the point of stabbing a partially born human child in the head, and

then sucking its brains out. This is a ‘‘state’’ created, state endorsed, and state sponsored right which can be altered at any time. That is why we hear shrieks of horror

at the prospect of a Supreme Court Justice who might not be favorable to this state

created right. Under ‘‘Creator endowed unalienable rights’’ stabbing a partially born

human child in the head and sucking its brains out would be a seditious evil demanding of criminal prosecution for those carrying out such heinous acts.

To gain and keep power and control, the black robed lawyer led judiciary MUST

maintain and promote Civil Rights as opposed to unalienable rights. Civil Rights

give the courts their power over issues that our Founding Fathers would be horrified to see today. Civil Rights allow the ‘‘back door control’’ of churches through

state created ‘‘statuses’’ such as the IRS code in question here. The exercise of

unalienable rights takes power and control away from both the state and the courts.

So frightening is the prospect of unalienable rights to the lawyer led Judiciary that

all vestiges of unalienable rights MUST be drawn under their control and domain.

To gain Civil control Bibles MUST be banned from the classroom (the very rule book

for the unalienable rights), political speech MUST be stopped from the pulpit (to stifle and stop morality, values, and any virtuous influence in politics), and the 10

Commandments and every Biblical reference in our Nation MUST be torn down and

removed from EVERY place in the Nation.

As a direct result of the blatant attack on the Foundations of this Nation’s religious history, America now enjoys an unprecedented place in history, of the industrialized nations we are now;

#1 In Teen Pregnancy

#1 In Violent Crime

#1 In Prison and Jail incarcerations

#1 In illiteracy

#1 In Suicide

#1 In Divorce

#1 In Drug Use

And the list goes on and on. Yet the frightening part of all of this is that it serves

a CIVIL government well. The more social disorder, chaos, immorality, violence,

crime, and other ills suffered by society, the greater need for more and more government control. And the greater and greater need for the growth of government to

‘‘combat’’ the ills that its attack on America’s foundations created to begin with.

‘‘Can the liberties of a nation be thought secure when we have removed their only

firm basis, a conviction in the minds of the people that these liberties are the gift

of God?’’ 33

The principles of our Founding Fathers were simple, they believed that if one

abided by the ‘‘golden rule’’ and preserved a sense of community based in common

morals, values, and virtues, that little government would be needed.

Please take a moment and read some of the quotes from our Founding Fathers

and then ask yourself, would THEIR interpretation of the Constitution allow the

IRS to regulate a church’s political speech?

[O]nly a virtuous people are capable of freedom. As nations become corrupt

and vicious, they have more need of masters.34

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35William V. Wells, The Life and Public Service of Samuel Adams (Boston: Little, Brown, &

Co., 1865), Vol. I, p. 22, quoting from a political essay by Samuel Adams published in The Public

Advertiser, 1749. 36 John Adams, The Works of John Adams, Second President of the United States, Charles

Francis Adams, editor (Boston: Little, Brown, 1854), Vol. IX, p. 401, to Zabdiel Adams on June

21, 1776 37Daniel Webster, The Writings and Speeches of Daniel Webster (Boston: Little, Brown, &

Company, 1903), Vol. XIII, p. 492. From ‘‘The Dignity and Importance of History,’’ February 23,

185238The Works of John Adams, Second President of the United States, Vol. IX, p. 229, October

11, 1798 39 John Quincy Adams, Letters of John Quincy Adams, to His Son, on the Bible and Its Teachings (Auburn: James M. Alden, 1850), p. 61.) 40Pennsylvania Supreme Court, 1824. Updegraph v. Cmmonwealth; 11 Serg. & R. 393, 406

(Sup.Ct. Penn. 1824)—such a modern profession by a judge would be ridiculed, criticized, and

the judge making such a statement would be attacked and maligned. 41Thomas Jefferson, The Writings of Thomas Jefferson, Albert Bergh, editor (Washington,

D.C.: Thomas Jefferson Memorial Assoc., 1904), Vol. XV, p. 383 42The exercise of religion is not a suitable basis for taxation. Follett v McCormick, 321 US

573. The mere chilling of a constitutional right is held oppressive. Shapiro v Thompson, 374 US

618.

[N]either the wisest constitution nor the wisest laws will secure the liberty and

happiness of a people whose manners are universally corrupt.35

[I]t is religion and morality alone which can establish the principles upon

which freedom can securely stand. The only foundation of a free constitution is

pure virtue.36

[I]f we and our posterity reject religious instruction and authority, violate the

rules of eternal justice, trifle with the injunctions of morality, and recklessly destroy the political constitution which holds us together, no man can tell how sudden a catastrophe may overwhelm us that shall bury all our glory in profound

obscurity.37

‘‘Religion, morality, and knowledge . . . [are] necessary to good government

and the happiness of mankind.’’—Northwest Ordinance (1787)

[W]e have no government armed with power capable of contending with

human passions unbridled by morality and religion . . . . Our constitution was

made only for a moral and religious people. It is wholly inadequate to the government of any other.38

The law given from Sinai was a civil and municipal as well as a moral and

religious code; it contained many statutes . . . of universal application-laws essential to the existence of men in society, and most of which have been enacted

by every nation which ever professed any code of laws.39

No free government now exists in the world, unless where Christianity is acknowledged, and is the religion of the country.40

The doctrines of Jesus are simple, and tend all to the happiness of mankind.41

And WHY do we use the IRS to regulate supposedly ‘‘free’’ speech in the ‘‘free exercise of religion’’? 42

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