Church Speech

February 6, 2017
posted by Bob Bauer

In a first step out on political reform (setting aside his executive order on lobbying), Donald Trump promised churches he would relieve them of the restrictions of the Johnson amendment on campaign activity. He didn’t go into any detail.

But over time there have been different proposals for protecting religious institutions’ political speech. One of them is arguably sensible, while another, more aggressive reform of this nature is best avoided.

Attention began to turn more widely to this topic when in the Bush 43 years there was a suggestion that IRS was monitoring sermons and prepared to act against churches where it found campaign content in speech from the pulpit. A notorious case involved a sermon that was critical of the war in Iraq and included favorable comments about Democratic presidential nominee John Kerry and critical ones of his opponent George W. Bush. Nothing happened; the IRS backed off. But it remains the case that while the Service seems to have no particular appetite for regulatory action based on this kind of speech, it could, if it wished. And as the Bush/Kerry episode revealed, the issue can cut in either partisan or ideological direction.

That is one issue, and a reform has been advanced to address it. Its sole point would be to allow for speech in the ordinary course of communications by a religious institution. In 2013, an organization called the Commission on Accountability and Policy for Religious Organizations recommended that religious institutions be free to make communications “related to one or more political candidates or campaigns… made in the ordinary course of… regular and customary… exempt purposes,” provided that the expenses incurred are de minimis. The exemption would apply specifically to sermons delivered “as part of a religious organization’s regular and customary worship services.”

This seems not especially ambitious in scope, and it would keep the IRS out of enforcement activity it is inclined to avoid, and should. There is an opposing view that opening the door to church endorsements invites abuse. Professor Ellen Aprill writes that “posting sermons and other communications on congregational Web pages and distributing them through social media are now common practices.” This would allow for “wide distribution in our digital age” of sermons with political content. This is true: Communication at “no cost” does not mean in this day and age that it will be limited in transmission. But it seems peculiar to take something as straightforward as an organizational endorsement and deny it on the basis that too many people might hear or read it.

It is worth noting in this connection that the Federal Election Commission regulations have long carved out an exemption for candidate endorsements from the broad ban on corporate electioneering. Other than the requirement that the speech be independent, that is, not coordinated with a candidate or party, there is a condition on distribution – – that it involve de minimis expense, defined to include a “press release and notice of the press conference… distributed only to the representatives of the news media that the corporation or labor organization customarily contacts when issuing non-political press releases or holding press conferences for other purposes.” 11 C.F.R. 114 (c)(6). Of course, the rule has been overtaken by Citizens United and now a corporation can make this kind of expenditure in any way it chooses, at any expense, provided that the spending is independent. But the larger point still holds that even before the Court removed the prohibition on corporate independent spending, the law allowed for companies to express candidate preferences, and it is difficult to see the basis for treating religious institutions differently.

Professor Aprill worries about the principle that taxpayers should not have to underwrite this activity. But if the activity is limited to “no cost” speech, there is not much cause for concern. Professor Aprill would reply that even if the tax subsidy is “negligible,” the speech is “still the product of and supported by a tax-exempt organization eligible for tax-deductible contributions.”   That is one way of framing the problem, but it requires a certain fuzziness in the use of terms like the “product of” and “supported by.” The question is: is there harm to the taxpayer by the effective diversion of their support for tax-exempt activity to a campaign-related purpose?  Not,it seems, if the expense incurred is “negligible.”

But there is a risk that organizations stymied in more limited expression will be offered or seek out alternatives that might be worse. As the tax law expert Professor Avrill notes, a religious institution in search of avenues for political expression can set up an affiliated 501 (c)(4) “social welfare” organization that it effectively controls, and the (c)(4) can establish a political committee that makes political contributions and expenditures. This is a complicated, more expensive and not clearly more desirable alternative to candidate preferences expressed at little cost in the course of ordinary course communications like sermons.

On the other hand, allowing for “no cost” expression of candidate preferences is probably as far as all this should go. Permitting more wide-ranging campaign activities by a federally tax subsidized entity would endanger the principle and policy that Professor Avrill rightly stresses.

And there is an ironic twist to the latest installment in this debate. Republicans regularly condemn public financing proposals. Expansive allowance for religious institution campaign activity would allow for taxpayer-paid politics of which the GOP routinely disapproves. Republican critics of reform also speak critically of the inescapable choice of winners and losers–those that benefit from reform and those that do not–that they see as a chronic risk of systematic campaign finance regulation. So beyond protecting endorsements by religious institutions distributed through normal public and press communications channels, Mr. Trump’s party should not want these tax-exempts, any more than others, to be granted special relief from restrictions on campaign activity.

It’s hard to imagine that suddenly the Republicans, after all these years of opposition to public financing, will suddenly have gotten religion on the subject.

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