Crossroads Podcast: The IRA Says ‘Churches’ Can ‘Endorse’ Politicians

It’s a question church-state experts have asked for decades: Is it legal for a minister, from a sanctuary pulpit on Sunday, to endorse a political candidate?

What if the pastor, on Saturday, stood 10 feet to the side of that pulpit (or had the pulpit removed) during a “nonpartisan” citizenship rally and said that he believed “God’s hand of blessing” was on a specific candidate? Oh, and the pastor also said something like this: “I’m not speaking for the deacons. This is just what I believe.” What if both political parties were invited to have voter-registration tables in the fellowship hall at that rally (and only one side showed up)?

Political puzzles of this kind were at the heart of this week’s “Crossroads” podcast, which looked at stories from the New York Times and Religion News Service (featured by National Public Radio) about the IRS decision not to enforce the Johnson Amendment banning candidate endorsements by tax-exempt nonprofits, including religious groups. The Times double-decker headline proclaimed:

I.R.S. Says Churches Can Endorse Candidates From the Pulpit

In a court filing, the tax agency said a decades-old ban on campaigning by tax-exempt groups should not apply to houses of worship speaking to their own members.

Media outlets called this a victory for evangelical churches, in part because press coverage of the Johnson Amendment has always focused on conservative churches backing conservative candidates. Meanwhile, similar non-endorsement statements that functioned as political endorsements were common in a variety of liberal and conservative settings, as well as in the activities of non-profit groups addressing the environment, abortion, labor issues, immigration, racial justice, economic reforms and so on.

The Times report noted that the I.R.S. released this ruling “in a court filing intended to settle a lawsuit filed by two Texas churches and an association of Christian broadcasters.” Also:

The plaintiffs that sued the Internal Revenue Service had previously asked a federal court in Texas to create an even broader exemption — to rule that all nonprofits, religious and secular, were free to endorse candidates to their members. That would have erased a bedrock idea of American nonprofit law: that tax-exempt groups cannot be used as tools of any campaign.

Instead, the I.R.S. agreed to a narrower carveout — one that experts in nonprofit law said might sharply increase politicking in churches, even though it mainly seemed to formalize what already seemed to be the agency’s unspoken policy.

The Times report later added:

Ellen P. Aprill, a professor emeritus at Loyola Law School in Los Angeles, said she believed that the I.R.S.’s decision would set off new debates about its limits. What if a church posts endorsements online? Communications meant for congregants could easily reach people unconnected to the church family.

“It’s not going to be limited to just their membership,” she said. “Even Las Vegas doesn’t stay in Las Vegas these days. Everybody has a web page.”

Of course, non-profit groups have had websites for several decades now and have used them to promote precisely the kinds of events and statements that have blurred the line between “public education” and “endorsements.” 

Law professor Lloyd Hitoshi Mayer, of the University of Notre Dame, told the Times that the ruling, “tells churches of all denominations and sects that you’re free to support candidates from the pulpit. … It also says to all candidates and parties, ‘Hey, time to recruit some churches.’”

That will be big news to activists in both Republicans and Democrats who, in the decades after the rise of Southern Baptist Jimmy Carter, have organized high-profile networks to increase support for their candidates in pulpits and pews.

Once again, many questions have been raised about photos of high-profile evangelical and Pentecostal leaders in which they place their hands on the shoulders of Donald Trump (as opposed to the top of his head) while they pray for God’s favor and protection on his life and work. Strange statements by Trump-linked ministers (do an online search for the Rev. Paula White) are sure to draw ink.

Meanwhile, a search for “Evangelicals for Kamala Harris” leads straight to the more subtle work promoted at the Evangelicals For America website. Do the same thing in Catholic cyberspace and there are groups such as Catholics For Kamala.

At the same time, “nonpartisan” think tanks backed by funders on the cultural left have upped their games, creating projects to educate traditional religious believers on how to take a more balanced, nuanced and compassionate approach to their decisions in voting booths.

Those progressive groups have every right to do that work, which is the other side of the “Religious Right” coin.

The RNS report (posted by NPR) also noted this interesting media angle:

The federal court filing is part of a proposed settlement of a lawsuit filed by the National Religious Broadcasters and a pair of Texas churches that sought to overturn the Johnson Amendment.

Those groups argued that some nonprofit newspapers and other publications have been allowed to endorse candidates without running afoul of the IRS, while IRS rules barred churches and other nonprofits from doing the same.

"Plaintiffs believe that nonprofit newspapers have a clear constitutional right to make such endorsements or statements," wrote lawyers for the plaintiffs in a complaint filed last August in the U.S. District Court of the Eastern District of Texas, Tyler Division. "Plaintiffs simply contend that they should also have the same freedom of speech."

What if conservative churches and denominations simply formed nonprofit publications and online news networks that began making explicit political endorsements on their “editorial pages”?

Once again, almost every question about the Johnson Amendment has, for decades, veered into thickets of thorny issues linked to the First Amendment.

Here is a frequently asked question: What is a “church”? 

— In terms of decisions that would need to be made to approve a partisan endorsement, each and every one of the thousands of independent nondenominational congregations (America’s fastest growing form of faith) is a radically different kind of ecclesiastical organism than an individual flock in a hierarchical tradition such as Roman Catholicism or Eastern Orthodoxy.

— What about complete denominations? Can anyone imagine the Southern Baptist Convention, the Church of Jesus Christ of Latter-day Saints, the Assemblies of God or other major denominations voting, at the national level, to endorse a specific candidate? That would also be dangerous in mainline Protestant bodies, such as the United Methodist Church, that are quite liberal at the level of leadership in their national agencies and schools.

— What about parachurch groups? Once again, would the national leadership of the National Association of Evangelicals or the National Council of Churches risk controversy with an open endorsement? What about ministries like Cru (the old Campus Crusade for Christ) or the Salvation Army?

Finally, as I mentioned earlier, it’s hard to define this word — “endorsement.” 

Is a prayer rally an endorsement? How about an educational event focusing on political choices linked to a public issue that is clearly doctrinal in nature, such as defending ancient teachings on the definition of “marriage”? What if religious groups — on the left or right — distributed “scorecards” noting how specific candidates voted in pieces of legislation linked to issues raised in, well, the Ten Commandments?

Religious leaders (and voters) will need to see if this I.R.S. ruling actually changes what happens in many pews and pulpits. There are so many questions to answer.

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