A federal law prohibits religious institutions from endorsing a particular candidate if they want to remain tax exempt.
DAVID GOLDMAN AP
Ahh, North Carolina in spring. The birds are chirping, the flowers are blooming, and the candidates are assassinating one another’s character.
In the run-up to the primary, the political advertisements came so fast and furious that we were often treated to one extolling a candidate followed by another calling the same candidate a traitor, all within 60 seconds.
But let’s talk about what happens when churches decide to jump into the fray, as one N.C. pastor did recently.
The federal tax code exempts certain organizations, including most churches, from taxation providing the church “does not participate in, or intervene in” any “political campaign on behalf of (or in opposition to) any candidate for public office.”
Indeed, churches occupy a unique place in the tax code. They can presumptively hold themselves out as churches and claim tax-exempt status which not only frees them from payment of taxes, but, at least as importantly, provides their contributors with a tax write-off.
That’s why I was surprised to see a full-throated clergy endorsement on the campaign website of Sandy Smith, a candidate for North Carolina’s First Congressional District. In it, Pastor Tim Butler of People’s Baptist Church in Greenville, appearing to speak from the pulpit in the context of a regular service, proclaimed that he did “not give up my civil rights because I’m a pastor.”
Although Butler purports to be speaking “not as a pastor” but “as a citizen,” he goes on to say that he had “found my candidate for the First District congressional office,” and “I can stand here and give her my full endorsement.”
He closes by telling the congregation that he has voted for Smith, saying “I hope you will do what (my wife) and I did,” and “I hope that there will be 100% voter participation from this church.”
The “no-politics” provision was added to the tax code in a 1954 amendment offered by then-Senate Majority Leader Lyndon Johnson who deplored the idea of tax breaks subsidizing political campaigns. In the past 68 years, the “Johnson Amendment” has been repeatedly codified in the tax code. President Trump made noises about repealing it, but took only ineffectual steps.
The tax-free status of churches engaging in political campaigning is rarely challenged. In the 1990s, the Church at Pierce Creek sought “tax-deductible donations” for a full-page advertisement in USA Today against then-candidate Bill Clinton proclaiming “Christians Beware.” The IRS initiated a Church Tax Inquiry and its decision to remove the tax-exempt status of the church was ultimately upheld in court.
That case served to solidify a number of operative principles concerning churches and politics. First, revocation of tax-exempt status does not violate the free exercise of religion guaranteed by the First Amendment. Churches are given a choice: engage in partisan political activity and forfeit tax-exempt status or refrain from such activity while remaining exempt. That choice, the court held, “is unconnected to (churches’) ability to freely exercise their religion.”
Second, the government has a compelling interest in maintaining the integrity of the tax system and the tax-code prohibitions are the least restrictive means of accomplishing that purpose.
That example has generally been sufficient to keep churches out of the political-campaigning game. Every election cycle, the IRS helpfully sends out a reminder to tax-exempt organizations to be aware of the ban on political campaigning. Public polling shows little support for partisan activity in churches and surveys of clergy indicate that most are happy not to be put to the test of picking a candidate.
The actual prohibitions are also fairly mild. Clergy can speak to political issues and even endorse candidates in their personal capacities. They just can’t do it in church publications or in official church services — i.e., from the pulpit. Churches can even make their pulpits equally available to all candidates without jeopardizing their status.
Whether deliberate or naïve, political campaign messages from the pulpit are no more entitled to a tax subsidy than those on television. My hope is that churches in 2022 will follow the law. Based on what I’ve seen so far, though, I’m not optimistic.
Press Millen is a trial lawyer in the Raleigh office of Womble Bond Dickinson (US) LLP.
