Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat “God PACs” Pose to Democracy and Religion

INTRODUCTIONOne month before the 2014 midterm elections, Dr. Jim Garlow, the pastor of Skyline Church in La Mesa, California, broke the law. At his Sunday church service, Garlow endorsed Democratic U.S. Congressman Scott Peters in California's Fifty-Second Congressional District over his openly gay Republican opponent Carl DeMaio.1 "[Y]ou cannot have the advancing of the radical homosexual agenda and religious liberty at the same time, in the same nation," Garlow explained to his congregation.2 While DeMaio shared many of the pastor's ideological positions, Garlow instructed his congregants to either support the Democratic incumbent or abstain from the election, warning that a DeMaio victory would mark the vanguard of a socially liberal Republican Party and the absence of a political home for Evangelical Christians.3As a condition of tax-exempt status under Internal Revenue Code § 501(c)(3), houses of worship-like all charitable organizations-may not "participate in, or intervene in . . . any political campaign."4 A spiritual leader's endorsement of a congressional candidate from the pulpit is a textbook violation of this tax code provision,5 known as the "electioneering prohibition." As part of an initiative called Pulpit Freedom Sunday, Garlow delivered his sermon in an act of civil disobedience, joining with other faith leaders in a coordinated effort to publicly flaunt the law and protest what they view as unconstitutional infringement on religious liberty and freedom of expression. Since 2008, over 3,800 pastors have participated in Pulpit Freedom Sunday.6 Participating pastors send copies of their sermons to the IRS, hoping to challenge the law's validity in court.7 Pulpit Freedom Sunday participants do not disguise their intentions. Garlow, for example, concluded his 2014 Pulpit Freedom Sunday sermon by saying, "[I]f, by chance, a member of the IRS gets this sermon and is listening, sue me."8 More than ever before, Garlow and other opponents of the electioneering prohibition may stand poised to realize their goals. Recent Supreme Court decisions lifting restrictions on political speech9 and granting religious exemptions to facially neutral laws 10 situate the electioneering prohibition at the epicenter of tectonic jurisprudential shifts.Left-leaning religious entities also chafe under the restrictions imposed by the electioneering prohibition. In the aftermath of the 2004 presidential election, for example, the IRS launched an investigation against All Saints Episcopal Church in Pasadena, California after its rector, Reverend Ed Bacon, delivered an antiwar sermon two days before the election.11 Bacon did not explicitly endorse a candidate, but depicted Jesus moderating a presidential debate and reprimanding President George W. Bush by saying, "Mr. President, your doctrine of preemptive war is a failed doctrine. Forcibly changing the regime of an enemy that posed no imminent threat has led to disaster."12 Ultimately, the IRS concluded its investigation without penalizing the church but reiterated its position that the church had violated the law.13 In opposing the investigation, Bacon warned, "If the IRS prevails, it will have a chilling effect on the practice of religion in America."14Despite conflict between the government and both progressive and conservative religious entities over the electioneering prohibition, the Supreme Court has never examined its legality. The Tenth Circuit upheld the provision under the Free Exercise Clause, holding that the "overwhelming and compelling Governmental interest . . . [in] guarantying that the wall separating church and state remain[s] high and firm" justifies any burden imposed by conditioning tax-exempt status on nonintervention in political campaigns.15 More recently, the D.C. Circuit upheld the provision under the Religious Freedom Restoration Act (RFRA), a statute that requires courts to apply strict scrutiny to facially neutral federal laws that substantially burden the free exercise of religion. …