This past year has proved to be a trying time for churches. With the emergence of COVID-19, churches have had to adapt to online meetings and outdoor services while continuing to care for congregations that need spiritual guidance more than ever. Adding to these difficulties is political turmoil brought upon by racial division and protests, the vacancy of a U.S. Supreme Court seat, and an upcoming election just weeks away. It is no surprise, then, that pastors across the country sense the need to provide spiritual direction on the issues of the day. But in the area of politics, what churches and pastors are allowed to do can be confusing. What follows is a brief overview to guide religious organizations through the complexities in this area of the law:
Churches, like many other tax-exempt organizations, are subject to the 501(c)(3) restrictions in the IRS Code. This is true of all churches, even though many have not applied for 501(c)(3) recognition. Many pastors do not realize that churches are considered automatically tax-exempt without obtaining formal recognition from the IRS. This being the case, churches should be aware of section 501(c)(3) and two main restrictions governing political activities.
First, churches may not engage in lobbying if doing so would constitute a substantial part of their activities or budget. Lobbying can be described as direct communications with government officials regarding legislative or executive action or church communications with its members or the general public urging them to contact governmental officials in support of, or in opposition to, legislative or executive action. Churches, however, may engage in lobbying if those efforts are “insubstantial.” Whether something is “insubstantial” is not entirely clear although the general rule is that churches should limit lobbying to 5-15% of their annual funds and activities to not run afoul of the IRS regulations.
Second, churches should be aware of the “Johnson Amendment” to section 501(c)(3) which prohibits churches from supporting or opposing candidates for office. Although there is much debate over the constitutionality of the Johnson Amendment which is beyond the scope of this overview, the law currently prohibits churches from making endorsements or contributions to any candidates. It is important to note that this rule does not apply to supporting or opposing non-elected officials, such as the President’s cabinet, nor does it apply to the support or opposition of the appointment of judges. In addition, pastors, in their individual capacity, maintain the same rights as other citizens and may, if they choose, endorse or contribute to candidates so long as it is clear that they are acting in their individual capacity and not on behalf of their church.
Despite the restrictions discussed above, there are still many things that churches can do. For instance, churches are allowed to preach and teach on the issues of the day and may even discuss candidates’ positions as long as doing so does not amount to support or opposition of those candidates. The IRS weighs seven factors to determine whether a church communication is permitted issue advocacy or if it violates the Johnson Amendment, namely: (i) Whether the statement identifies one or more candidates for a given public office; (ii) Whether the statement expresses approval or disapproval for one or more candidates’ positions and/or actions; (iii) Whether the statement is delivered close in time to the election; (iv) Whether the statement refers to voting or an election; (v) Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office; (vi) Whether the communication is part of an ongoing series on the same issue, distributed by the organization independent of the timing of any election; and (vii) Whether the timing of the communication and identification of the candidate are related to a non-electoral event. No one factor is dispositive as the IRS utilizes a “facts and circumstances” test to weigh each factor.
In addition to issue advocacy, churches are also permitted to allow candidates to appear at churches services, engage in non-partisan voter registration and identification activities, engage in nonpartisan get-out-the-vote and voter education activities, make expenditures related to state referendums, and distribute candidate surveys, voter guides, or voting records of incumbents. This list is not exhaustive and a church that wishes to engage in these activities, or any other permitted activities, should consult with legal counsel to ensure that it is in compliance with the law. For example, though a church may invite a candidate to speak at a service, it can only do so if it allows other candidates to speak as well. Consulting legal counsel ahead of time will enable churches to avoid traps and pitfalls in what can be a puzzling area of the law.
The above provides only a brief overview and does not address every scenario that may arise. If you or your church have any concerns related to civic engagement, the attorneys at Dalton & Tomich are available to speak with you.