IRS sued for not enforcing campaign restrictions on churches

Juidth Davidoff: "On the heels of a presidential election in which hundreds of preachers publicly promised to flout Internal Revenue Service rules by endorsing candidates from the pulpit, the Madison-based Freedom From Religion Foundation filed suit against the IRS for failing to enforce electioneering restrictions against churches and religious organizations."


    1. Unfortunately it’s more likely that this will go all the way to the Supreme Court, and that the restriction will be shot down 5-4. There’s been some theorizing that this is exactly why the IRS is not enforcing it. The political climate in the judicial system is currently poised to favor the right who rely on these churches to get elected.

      1. And the Freedom from Religion Foundation’s board will all go to trial for “tax irregularities”.

    2. Supreme Being: I should do something very extroverted and vengeful to you. Honestly, I’m too tired. So, I think I’ll transfer you to the undergrowth department, brackens, small shrubs, that sort of thing… with a 19% cut in salary, backdated to the beginning of time.
      Randall: Oh, thank you, sir.
      Supreme Being: Yes, well, I am the nice one.
      (Time Bandits, 1981)

      1.  Brilliant quote, great movie. I will never forget the injection of sleeping potion into the giant’s head…

  1. GOOD. Finally, holding those that hold others accountable. I was dumbfounded when I read they actually admitted to not enforcing the law.

  2. The church at the end of my street put a flyer on my door telling me who to vote for.  i turned around and sent it to the IRS.  Maybe they will actually do something about it now.  

    1. It helps if you have some understanding of the way bureaucracy works.

      First, the IRS doesn’t have people earning Sunday differential pay to go to churches just to scope out what’s happening.  Thus, they need people like you to provide them with leads.  Thank you for the effort you’ve described.  I fear, though, that this is not enough.

      Leads with a nice letter stapled to them saying “Could you please look into this?” won’t cut the mustard.  The IRS is a bureaucracy and thus has a form for every function.  If you want a function performed, you must inject the form into the workflow or nothing (usually) will happen. 

      In this case, did you make a formal filing by attaching the flyer to and fully completing either Form 3949A ( ) or Form 211 ( )?

      If you didn’t use either form, the nice folks who opened your inquiry would need to be well enough trained to route it correctly.  Often, that happens…but not often enough.  To be certain that an inquiry is created in the giant paper workflow machine, you need to plant the right seed…er…form from which an investigation can grow.

      Did you?

  3. My kind hearted, live and let live, gays folks are just fine by me brother votes republican because he’s a simple guy who just wants to be a good person, and his church tells him good people vote republican.

  4. Several churches have been flouting this for several years because they WANT someone to sue them over it. They want to take the issue to the Supreme Court because they believe that the Court will rule the ban on churches endorsing candidates unconstitutional. They may be right. The Obama administration has intentionally not pursued these cases because they do not want to risk taking it to the Supreme Court.

    1. But by not enforcing the law, don’t the churches get what they wanted without having to go to the SCOTUS?

      1. No.  Having some violations overlooked is a problem – but an adverse ruling would be a disaster.  With the current court, it’s anybody’s guess how the ruling would go.  But it shouldn’t be a guess – with a less insane court, the case would be a slam dunk.  In fact, it wouldn’t even get to the Supremes, it would be decided in in Appeals and that would be that.

        And Obama will probably give us 2-3 sane justices in the next 4 years.

        1. From the Detroit Free press:

          From the article: “After two courts dismissed the case, the attorney for an Ypsilanti pastor who is challenging a Michigan law that restricts what ministers and other religious leaders can say about politics plans to file another appeal Friday.”

          A little different story because the guy feels like he’ll be unfairly prosecuted, even though he’s never been prosecuted and there’s no real precedent. It has been laughed out of court. Twice. The guy doesn’t get the tax exempt part though.

          1. Yea that’s not really relevant, except in the vaguest way.  It has a church in it, and a government.

    2. I wouldn’t be too sure of a constitutional victory for the churches here.  Jefferson made it pretty clear that he considered the Church of England to be a huge mistake that he didn’t want to repeat.  Churches endorsing political candidates is exactly the sort of manipulation that we were supposed to avoid.  The Supreme court justices will take broader context into consideration when deliberating on the issue.

          1. That’s not necessarily true. The one judge expected to retire the soonest is a liberal one. The other two may cling to their seats until they see how 2016 pans out.

          2. But, and this is a BIG BUT – if you’re referring to Ginsburg and/or Breyer, at least they won’t be replaced by a Romney appointee.  So even if that’s the only shakeup in the Court during the next four years, @Scooter_Jackson:disqus ‘s argument still holds true.
            That said, there’s also still four more years of possibility that Scalia or Thomas could retire for currently unforeseen reasons, such as health, as they’re getting on in age.

      1. The current Supreme Court has a very strong opinion of the exact wording of the Constitution. It really depends on how they interpret free speech vs the church itself. I don’t know how they actually interpret “separation of church and state” and the Obama administration is probably concerned that they could rule so broadly that this will have very broad implications, like Citizens United.

        1. It’s not a matter of free speech. It’s a matter of tax exempt status. The church is free to speak however they want — but if they tread into the waters of political action, then they lose their tax exempt status.

          1. What’s to stop churches that get involved with politics from changing over to some other non-profit status?

      2. Jefferson. Yeah. His moral authority is kind of undermined at this point.

        Also, the C of E operated on sort of the exact opposite premise. The state controlled the church, not vice versa.

        All that being said, if a condition of being tax exempt is political neutrality, that ought to apply to churches as well as any other organization.

    3. So either the churches get to do something illegal without punishment, or they’ll get a chance to make it legal.  Sounds like a “heads I win, tails you lose,” kind of situation.  Personally, I say you enforce the law, and if that results in the law being changed, so be it.  At least it’ll be clear what’s really going on then.

      The thing is, there’s nothing that says that a church can’t endorse candidates.  It just that if they do, they lose their tax exempt status.  There’s an alcohol tax, but that’s not the same thing as a ban on alcohol.  It’s just a rule that says, “sure, you can do this, but you have to pay the taxes.”

      What’s the counter-argument? To claim that endorsing candidates is an integral part of the religion itself? That one cannot freely practice that religion if they cannot endorse candidates?  Maybe there’s an argument there, that the religion bounds you to speak out, but it sounds a bit tenuous to me.

      But sure, let’s sort it out in the courts.  It’s better than letting people knowingly breaking the law and doing whatever they want without fear of punishment.  A law that isn’t enforced isn’t really much of a law.

      1. If the law gets changed in that regard, hopefully they will also make churches start paying taxes, both income and property.  Either you keep yourself separate from the state or you don’t.

  5. Good.  I hope it goes somewhere, but it won’t.  I doubt the Obama administration is keen on doing anything that makes it look like he’s persecuting Christians, even if their churches and leaders are knowingly breaking Federal laws.

    1. If he really wants traction on the issue, he should find some Muslim mosque that was promoting liberal candidates and go after them.  Republicans would be backed into a corner and have to choose between the broader issue of religious rights versus being seen helping “those darkie towelheads” to their base, especially when primary season comes along and the even more right wing guy challenges them and starts playing ads about how congressman so and so collaborated with terrorists (obviously anybody who goes to a mosque is a terrorist if you’re a far far right wing primary voter). 

      1. Sadly, I think you’re right. The only way this will work is to further demonize a minority.  Zeus forfend we “attack” Christians by making them follow the Constitution and subsequent laws.

  6. It’s about damn time. Let’s see if it might also go back and investigate both the Mormon and the Catholic churches for all of their political influencing in the California Proposition 8 campaign in 2008.

    1. But then the Mormons deliberately don’t apply for the Tax Breaks so that they can say what they want.  Their religious installations and organisations pay the same taxes as any other business.

  7. There is some nuance here. The tax exempt organization in the article isn’t endorsing a candidate, the organization is commenting on social and moral issues. Like a cancer foundation communicating about the issue of research grants when there is a bill pending. I think that’s okay.

    The partisan endorsements of candidates were made by _employees_. The pastors want to make a distinction between the endorsements made by employees and the tax exempt organization. I think there is a distinction in there somewhere but when the employee is the pastor and the endorsement is done during the worship service it starts to look like a corollary to respondeat superior–the action of the employee is reasonably imputed to the exempt organization.  Some of my law practice includes nonprofits and I think the IRS needs to give and enforce additional guidance on this imputation of political speech. Hope the lawsuit spurs this.

    1. Hmmm – A high-ranking religious official privately ordering underlings to carry out his wishes while denying that he had any responsibilty for their actions. Sounds like CLASSIC management tactics to me. “Faith-Based” barely enters into it.

    2. No middle ground.  When it goes out on Church letter head, or comes from the pulpit, it is the church acting as a political organ.  

      This is NOT a free speech question, this is a TAX question.  Churches are, and always have been free to endorse candidates, or advance a political agenda… they just can’t do so AND be exempt from the taxes that all of the rest of us citizens and organizations have to pay.  

      You want a free ride?  Then you cant play at politics.  Pay your own way, and you can say whatever you want.

      1.  I agree about the church letterhead.

        But I do think there is an ambiguity about the pulpit. In many congregations, the pulpit is an open forum. The speech of any one congregant over the pulpit cannot mean that the whole organization has acted. I am acquainted with the materiality rules in the Section 501 and there is grey.

        If an AIDS center had an open meeting and one member admonished the attendees to vote for Obama because under Romney agencies would be less sensitive, that speech would not violate the exempt status.
        What about a volunteer?
        What about an employee?
        What about the president of the AIDS center?

        So your black and white rule is no more helpful than the assertions of these pastors. I think they are indefensibly across the line when they announce a special service and when the professional pastor speaking as pastor makes endorsements.

        I think the pastor qua pastor can speak to moral and social issues, but many of these guys who have publicly flouted the requirements have crossed the line.

        1. In many congregations, the pulpit is an open forum. The speech of any one congregant over the pulpit cannot mean that the whole organization has acted. 

          Why not? It’s the church’s policy to allow it.

        2. They you could take tax claims on the pastor/padre or however you call them over there and his churches-grounds. As in taxing the offending part of the organisation and not the organisation as whole.

  8. Any lawyer around want to comment on whether or not the plaintiff has standing to bring this case? Can anyone sue the IRS over something like this?

    1. I am not a lawyer.

      Agencies of the US government enjoy immunity from most lawsuits, unless they choose to waive that privilege.  See Gray v. Bell, 712 F.2d 490, 507 (D.C. Cir. 1983) on OpenJurist.  The Federal Tort Claims Act provides a broad consent to suit “for personal injury or death caused by the tortious actions of government employees acting within the scope of their employment under circumstances where a private person would be liable” while at the same time closing up nearly all other loopholes in sovereign immunity.

      So, it’ll be thrown out under sovereign immunity, unless you can prove somebody died or was maimed as a direct result of the action.

      1. No. There are a lot of waivers of immunity. The Tort Claims Act is a pretty broad one, but there are dozens of others.

        The issue is standing. You have to prove that *you* have a cognizable claim. It usually has to be more than a generalize “harm” that all of society feels. I’m not sure about standing here, but that is the main underlying issue.

        EDIT: I am a lawyer, FWIW.

        1. Ah, I have been wondering if you were a friend of mine from my rocket science days, who also goes by “Chicago D” on occasion.  But he isn’t a lawyer, so that clears that up!  ^_^

          Thanks for the informed opinion, in any case.

      2. No – see 5 USC Section 702

        It looks like the Plaintiffs are saying that they have standing because (1) they are taxpayers and (2) they were injured by the failure by the IRS to enforce the law (churches are receiving preferential treatment by the IRS).

        The case might fall for lack of standing. Standing is generally decided on fact-specific basis. So, maybe.

        1. So a candidate whose opponent was endorsed in this manner and who lost to that opponent would be a better person to file this lawsuit, as their candidacy was affected by the illegal contributions that the IRS should have stopped?

  9. FWIW, last year I called in to a widely broadcast religious radio program, got on the air, and asked whether the political talk I had been listening to violated the First Amendment. The radio hosts got very flustered.

  10. Most churches are 503(c) corporations. The Citizens United verdict gives corporations the ability to spend unlimited money in political campaigns.  Could/What if that precedent gets applied here? Churches (religious corporations) argue that it’s pastors are hired to engage in this activity, and are therefore no different that a corporation hiring an ad agency. All of a sudden you can have the wealth of the Vatican spent on electing Catholics and world-spanning Mega churches buying a US theocracy.

    Soon you will have religious-corporate morality squads wandering the streets with the police harassing Mosques, raiding Atheist meetups, asking couples for their marriage licenses and beating gay men for random, trumped-up charges.

    And if you scoff at this as just paranoia then you have never had a calm and otherwise rational person tell you that you don’t deserve rights because you believe differently.  And that person was a sitting president of the US. (Bush Sr.)

    1. See zieroh, above:

      It’s not a matter of free speech. It’s a matter of tax exempt status. The church is free to speak however they want — but if they tread into the waters of political action, then they lose their tax exempt status.

    2. No.  By definition, a 501c3 can’t spend on politics, whether it is a church or the March of Dimes.  If they do, they turn into a 501c4, which means your donations aren’t deductible.  Citizens United is not relevant.

  11. It’s funny how in this U.S. Newspeak, “enforcing” actually means “punishing after the fact.”

    So, in the case of something as significant as election, “the cause justifies the means” and punishing after the fact does not change the outcome.

    This, of course, goes for any crime. A culture which mistakes punishment with enforcement just creates a lot of punishment.

    1. You’ve struck a central issue in just about every legal system on the planet. It’s not just the US. The legal system is really about punishing people more than anything else, and this is as true outside the US as it is in the US.

      The difference between the US and many other nations is that we over rely on our legal system to address our problems. Other nations are happy to introduce other systems and other institutions into their daily lives to address the problems they face before they become legal issues. In the US, that’s considered Big Government or Socialism by people who aren’t really interested in solving problems so much as they are in fooling themselves into believing they can be isolated from them.

      In this case though, we actually have a system in place to address this problem before it turns into a legal issue. The IRS is supposed to be collecting taxes from entities that engage in political campaigning. Technically, this isn’t a legal issue because the churches haven’t refused to pay taxes. They haven’t been asked to. They’re not in violation of any law yet.

      The IRS has failed to properly assess the tax obligations of the institutions involved. So they are the only ones who have broken the law so far. Again, we are relying a little bit too much on our legal system to solve our problems because instead of the administration simply instructing the IRS to follow the law (which it has the authority to do) a citizens group has to step up and file suit against the IRS for their violation of the law. After this whole thing shakes out, even if the IRS loses in front of the SCOTUS, the churches who failed to report as taxpaying organizations this time around probably still won’t be held accountable because it was the IRS that failed to properly assess them.

      With the current climate in the US, I think holding these organizations responsible will be used as a talking point for the lunatics on the right, and they’ll more than likely win some of the moderates over by doing so. The moderates are much more likely to be swayed by claims (however false) of 1st amendment violations than they are by religious zealots with pamphlets and TV ads. I think we’d be better off just letting this go until this reawakened religious fervor dies down a bit, and we can actually have a reasonable national discourse again. So, when the boomers die basically. Again, holding them accountable or revoking their tax-exempt status is just a way for us to punish them, not really solve the underlying problem.

    2. Well it’s very hard to punish people before the fact – unless you consider austerity to be a form of punishment.  Even so, it seems to increase crime, so it’s not working out too well.

  12. Why aren’t churches in the United States organized and regulated like other organizations with a joint mission of advocacy and charity: having their funding sources separated by intended use? Several of the nonprofit organizations I donate to accept donations to multiple funds: a tax-deductible fund for true works of charity and public education, and a non-deductible fund for advocacy. Things that are unarguably for the public good can be paid for with tax-exempt funds. Things that advocate a specific position or point-of-view come out out non-exempt funds.

    I’m fine seeing donations to churches remain deductible when the money goes directly to hunger and poverty relief, for example. But if they money is being used to lobby (even for a social welfare issue), it should go into a 501(c)(4) account, which is not tax deductible. And if they’re trying to influence an election, they should have a separate PAC registered with the appropriate entity, just like everybody else.

    1. “Why aren’t churches in the United States organized and regulated like other organizations with a joint mission of advocacy and charity: having their funding sources separated by intended use?”

      Uh, because they can, and have, argued that the seperation of church and state prevents such regulation, so long as they’re within the bounds of a church (also respecting that seperation, and staying out of the state’s business). I say that because I have to assume fro your question that you’re not familiar with US Civics 101. The rest of what you said makes perfect sense, and would be sensible… but when did religeon and sense ever collide with universally acceptable results?

      Where I think this ges funny is when churches put cell phone towers in their steeples. What’s the EM limit? Who can tell a church that it’s cell phone tower is illegally powerful. How can the feds regulate what happens inside a steeple??

      1. Uh, that’s not correct. Churches are subject to the laws of the state. For instance, they would be subject to every single law and regulation regarding any cell tower anywhere. The separation between church and state had nothing to do with not being subject to laws. It has to do with not having a state religion, and the state not intervening in internal church conflicts. For instance, there are cases where separate bishops sue each other for control of a church building based on church rules. The courts refused to rule on that.

        1. I’m sure you’re right, legally. But you go and find where your local town keeps building inspection records, fuel oil tank records, sprinkler inspection records and the like for your local church. I’ve looked. I’m amazed how non-enforced those things are, because nobody wants to step in it, legally.

          Deference goes a long way. That’s why they think they can get away with politics. The pushy book-thumping jerks. 

      2. I asked as a rhetorical question. I don’t believe that consistent, universal application of tax law to all organizations interferes with the Free Exercise Clause in any way. But I’m also not counting on getting an appointment to the federal bench any time soon, so my guess is that my opinion on this doesn’t matter one heck of a lot.

  13. The issue is not whether churches are banned from engaging in overt political behavior, it’s whether or not they are entitled to maintain their tax-exempt status if they do so. The fact that churches currently engage in political advocacy and do not pay taxes means that US taxpayers subsidize the churches – and by extension, the candidates that they support. This is WRONG!

  14. If this has been touched on, I’m sorry, but churches should no longer be tax-exempt. Especially if they’re preaching politics from the pulpit.

  15. So, if the IRS does enforce the law the teabaggers will claim that Obama is a godless communist christian hating muslim black man who’s out to destroy America.

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