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Clergy: Free Speech Is Just That, Unless It Costs Money

By Mark Hrywna - August 14, 2013

Clergy and other nonprofit leaders should be free to say what they want even during campaign season — as long as it doesn’t cost any more money to do it.

Tackling the vagueness of federal regulations regarding nonprofits’ activity political campaigns, the Commission on Accountability and Policy for Religious Organizations released its second report in response to a request from Sen. Charles Grassley (R-Iowa) for guidance. The commission also issued a report in December on national tax policy for religious and other nonprofits.

The approximately 60-page report titled “Government Regulation of Political Speech by Religious and Other 501(c)(3) Organizations: Why the Status Quo Is Untenable and Proposed Solutions” had three primary recommendations:

  • Clergy should be able to say whatever they believe is appropriate in the context of their religious services or other regular religious activities without fear of reprisal by the Internal Revenue (IRS), even when that communications includes content related to political candidates. The communication would be permissible provided that the organization’s costs would be the same with or without the political communication.
  • Secular nonprofits should have “comparable latitude when engaging in regular, exempt-purpose activities and communications.”
  • Current IRS policy not permitting tax-deductible funds to be disbursed for political purposes should be preserved.

“The law prohibiting political campaign participation and intervention by 501(c)(3) organizations as currently applied and administered lacks clarity, integrity, respect, and consistency,” Commission Chairman Michael Batts wrote in the report. Organizations’ leaders “are never quite sure where the lines of demarcation are, and the practical effect of such vagueness is to chill free speech – often in the context of exercising religion,” wrote Batts, the president and managing partner of the Orlando, Fla. accounting firm Batts Morrisson Wales & Lee. Many nonprofits engage regularly in communications that the IRS says are prohibited and there are no consequences, he added, leading to claims of selective or inconsistent application of the law.

A critical point of agreement among commission members and panelists is that clergy “should be permitted to say whatever he or she believes is appropriate in the context of a religious worship services without fear of government reprisal, even when such communications includes content related to political candidates,” said Batts.

The recommendations “strike a necessary balance of permitting religious and other nonprofit organizations to engage in communications that are relevant to their exempt purposes while ensuring that such organizations expend their funds in a manner consistent with their tax-exempt charitable, religious, educational, and similar purposes,” Batts wrote.

The report goes into some history of the ban on political campaign participation or intervention, which was included in the Revenue Act of 1954 after “minimal legislative history.” It also points out key cases over the years in which the IRS has examined organizations or their leaders for certain actions, particularly several instances during the 2004 presidential campaign as well as related actions like last year’s Pulpit Freedom Sunday.

The Evangelical Council for Financial Accountability (ECFA) established the commission in response to a January 2011 request by Grassley to coordinate a national effort to provide input on accountability, tax policy and political expression for nonprofits in general and religious organizations in particular.

The commission is comprised of 14 members and 66 panel members, including legal experts and representatives of religious and nonprofit sector organizations.

The full report is available at www.religiouspolicycommission.org

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