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Churches in an Election Year – Staying Legal

By Dan Busby, President Emeritus

It is always important for church leaders to understand the current federal law concerning political campaign activity—it relates to candidates for any elective office at federal, state, or local levels. But the need to understand the law is even heightened in a Presidential election year.

The interpretation by the IRS of the political activity laws is very rigid; however, it would be remiss to not mention that these laws are recently coming under scrutiny as to their constitutionality. Churches considering challenging these laws should be fully aware of the possible ramifications of an unsuccessful challenge. This article addresses the current state of the law and its interpretation by the IRS. 

The current prohibition on political campaign intervention is absolute and may result in the loss of tax-exempt status. The law prohibits participation or intervention in “any political campaign on behalf of (or in opposition to) any candidate for public office.”

How is a church most likely to run afoul of the political campaign law? Here are a few key areas:

  • Endorsement of or opposition to a candidate. A church is prohibited from both direct and indirect endorsement of a candidate. Direct endorsement or denouncement is easy to identify, as when a church leader makes a statement supporting or opposing the election of a candidate. Indirect endorsement may merely be identifying the “type” of candidate for whom one should vote (e.g., liberal, anti-gun, etc.). Even when no specific candidate’s name is mentioned, the IRS will consider the activity intervention in a political campaign.

Even if a statement does not expressly tell an audience to vote for or against a specific candidate, a church leader delivering the statement is at risk of violating the political campaign intervention prohibition if there is any message favoring or opposing a candidate. A statement can identify a candidate not only by stating the candidate’s name but also by other means such as showing a picture of the candidate, referring to political party affiliations, or other distinctive features of a candidate’s platform or biography.

  • Activity by church leaders. The political campaign intervention prohibition is not intended to restrict free expression on political matters by church leaders speaking for themselves, as individuals. Nor are church leaders prohibited from speaking about important issues of public policy that are hot campaign issues.

On the other hand, church leaders should not make partisan political comments in church publications or during church services or functions of the church. Church leaders who speak or write in their individual capacity should clearly indicate that their comments are personal and not intended to represent the views of the congregation.

Example:  The senior pastor of Church A, along with four prominent civic leaders, has personally endorsed Candidate B. Candidate B publishes a full page ad in the local newspaper listing the names of the five leaders. The pastor is identified in the ad as the senior pastor of Church A. The ad states, “Titles and affiliations of each individual are provided for identification purposes only.” The ad is paid for by Candidate B’s campaign committee. Because the ad was not paid for by Church A, the ad is not otherwise in an official publication of Church A, and the endorsement is made by pastor in a personal capacity, the ad does not constitute campaign intervention by Church A.

  • Websites. Churches often routinely link their websites to websites maintained by other organizations as a way of providing additional information that the church believes is useful or relevant to the congregation.

If a church posts something on its website that favors or opposes a candidate for public office, the church will be treated the same as if it distributed printed material, oral statements or broadcasts that favored or opposed a candidate.

When a church establishes a link to another website, the church is responsible for the consequences of establishing and maintaining that link, even if the church does not have control over the content of the linked site. In determining whether a link to another website is appropriate, the IRS will review whether all candidates are represented on the linked site and the directness of the links (how many clicks) between the church’s website and the web page that contains material favoring or opposing a candidate for public office.

So before your church gets too close to the edge of political campaign intervention, take a deep breath and step back from the precipice. Those in the know about IRS audits suggest that most audits of churches are conducted when the IRS enters through the political campaign activity door and then has open access to all church issues, including payroll taxes, unrelated business income and much more.

 


This text is provided with the understanding that ECFA is not rendering legal, accounting, or other professional advice or service. Professional advice on specific issues should be sought from an accountant, lawyer, or other professional.

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