Hot debate over free-speech 'chill'

When Harlem's historic Abyssinian Baptist Church hosted an Oct. 27 campaign rally for Sen. Hillary Rodham Clinton, the choir performed an anthem with a gospel double-entendre: "Victory Is Mine." Clinton issued her customary denunciations of President Bush, while Congressman Charles Rangel and other Democratic politicians blessed her candidacy. Though pastor Calvin O. Butts III was also on hand, the chief preacher was in fact former president Bill Clinton.

He proclaimed his spouse "the best-qualified, best-suited non-incumbent ever" to run for president, and "the person who is most likely to bring the changes we need." Plus, "she can win."

This was nothing unusual for the former president, who during the 2004 campaign delivered a Sunday sermon in New York's Riverside Church that assailed Bush and lauded his opponent ("I like Senator Kerry. . . . I like him because he doesn't pretend to have all the answers").

Like Clinton, Abyssinian is familiar with religio-political entanglements. After all, its onetime pastor Adam Clayton Powell Jr. was a 14-term congressman. The rally-for which the church was the backup venue due to rain-strategically outflanked Sen. Barack Obama of Illinois, the first African-American with a shot at becoming president.

Are campaign appearances at churches legal? That issue stems from a 1954 amendment to the federal tax code introduced by Senate Democratic leader Lyndon B. Johnson. It forbids organizations that are tax exempt under section 501(c)(3) to intervene in "any political campaign on behalf of (or in opposition to) any candidate for public office." The particulars are defined by congressional interpretations, U.S. Treasury and IRS rulings, and court decisions.

Earlier this year the stepped-up "Political Activity Compliance Initiative" of the IRS reported that 237 complaints against tax-exempt groups were filed during the 2006 campaign, a 43 percent jump from 2004. Of these, 44 percent involved churches.

In recent weeks, the IRS ended two key investigations and upheld tax exemptions for the conservative Focus on the Family and the liberal All Saints Church (Episcopal) of Pasadena, Calif.

Americans United for Separation of Church and State has filed 68 campaigning complaints with the IRS over the past decade. This year's filings cite Bill Keller Ministries of St. Petersburg, Fla.; the Catholic bishop and diocese of Providence, R.I.; First Southern Baptist Church of Buena Park, Calif.; St. John African Methodist Episcopal Church in Niagara Falls, N.Y.; and three congregations in Memphis, Tenn., whose pastors endorsed mayoral candidates.

As for Abyssinian, the Rev. Barry Lynn, Americans United's executive director, says legality depends largely on a tenet in the nine-page IRS rulebook forbidding a candidate appearance "if other candidates are not given an equivalent opportunity." Abyssinian did not respond to WORLD's inquiry on whether it would offer Clinton-level hospitality for, say, Obama or former Mayor Giuliani. "If the answer is no, they're skating on thin ice," Lynn said.

The rulebook also prohibits, for example, direct contributions, organizational endorsements, literature distribution, fundraising help, mailing list rentals, office space, slanted web postings, even links to other websites that are deemed partisan.

Over the years the IRS has revoked the tax exemptions of several religious organizations but only one congregation: the evangelical Church at Pierce Creek near Binghamton, N.Y., which ran two national newspaper ads against Bill Clinton in 1992. In a subsequent federal lawsuit, Pierce Creek asserted that IRS policy violates the constitutional rights of free speech and religious freedom. The suit also claimed "selective prosecution" by citing 65 examples of religious politicking, mostly candidate appearances at churches. Judge James L. Buckley, a onetime U.S. senator of New York's Conservative Party, rejected those claims in a significant 2000 ruling for the D.C. Circuit Court of Appeals.

The All Saints investigation involved a 2004 pre-election sermon by its retired rector who, like Clinton at Riverside, excoriated Bush and all but endorsed Kerry. A New York Times editorial questioned whether the IRS was targeting religious liberals and ignoring conservative churches. In September, the IRS notified All Saints that the sermon violated the law but appeared to be "a one-time occurrence" so tax exemption continues. In response, the church demanded an IRS apology. It has also filed a protest with a Treasury Department inspector general, accusing the IRS of procedural lapses, possible improper involvement by political appointees, and vagueness about the rules that could "chill religious speech."

Focus on the Family, by contrast, is content to proclaim victory. Its case began with a 99-page protest over founder and chairman James Dobson's political activities and endorsements during 2004. That complaint was filed by Citizens for Responsibility and Ethics in Washington (CREW), which is led by a former Democratic congressional staffer. Focus has not released the final IRS notification, but essentially it said Dobson acted as an individual apart from Focus functions and publications and never indicated he was representing his organization. Indeed, the IRS says the campaigning ban does not "restrict free expression on political matters by leaders of organizations speaking for themselves as individuals," nor does it prevent tax-exempt groups from addressing public issues.

In 2004, Focus created the separate Focus on the Family Action to handle public advocacy because the law says "no substantial part" of income to 501(c)(3) organizations may be spent to influence legislation. The 501(c)(3) groups are exempt from taxes on their income, but donors also may deduct contributions on their personal tax returns. As a 501(c)(4) entity, Focus Action gets the first break but not the second.

In September, Focus joined the Alliance Defense Fund, Concerned Women for America, the Family Research Council, and the James Madison Center in a memo to clergy that belittled the "remote possible loss of tax-exempt status." Judge Buckley's ruling acknowledged that loss of exemption is likely to be "more symbolic than substantial." The reasons: Penalty fees are modest, violators can re-apply for future exemption, and donors don't lose deductions for their contributions unless they are audited.

Sounding like the All Saints "chill" protest, the conservative organizations also charged that tax exemption threats are "used by those hostile to people of faith to chill their right of free speech" and specified Americans United, which regularly attacks conservative activists. Lynn insists that Americans United continually notes that the IRS lets churches address public issues. His "Project Fair Play" letters to clergy warn that "any activity designed to influence the outcome of a partisan election can be construed as intervention" and that exempt groups must be "especially wary of so-called 'voter guides'" that "are often thinly veiled partisan materials." That echoes IRS interpretations. Lynn says his purpose "is not to have churches lose tax exemptions, but to remind them that the law applies to anybody. You've got to play by the same rules that everybody else does."

The entire imbroglio would cease under a proposal from Rep. Walter Jones, R-N.C., to scrap the 1954 Johnson amendment. His bill, which has stalled several times, is supported by the religious right and opposed by the religious left. Focus senior vice president for public policy Tom Minnery says Congress didn't even hold hearings on the 1954 amendment and Johnson never had churches in mind. "It's too much government control," he said. America should "shore up the wall of separation which, properly understood, keeps government hands off the churches." Given Democrats' and liberals' resurrected zeal for religious appeals, Minnery suggests, all sides may eventually want to repeal the ban.

Minnery said he sees hypocrisy at work because complaints escalated only after conservative churches began responding to liberal agitation. The 1998 National Congregations Study found that Catholic, black, and mainline-liberal churches still generally outpace evangelical-conservative churches on seven types of political activity. Black churches such as Abyssinian were by far the most likely to host candidate appearances.