A prominent conservative legal-advocacy group, however, has an idea: conservative churches should ignore the law -- and in the process, test the law -- on purpose.
Declaring that clergy have a constitutional right to endorse political candidates from their pulpits, the socially conservative Alliance Defense Fund is recruiting several dozen pastors to do just that on Sept. 28, in defiance of Internal Revenue Service rules.The effort by the Arizona-based legal consortium is designed to trigger an IRS investigation that ADF lawyers would then challenge in federal court. The ultimate goal is to persuade the U.S. Supreme Court to throw out a 54-year-old ban on political endorsements by tax-exempt houses of worship.
Every year, as candidates seek to curry favor from religious leaders, a handful of churches cross the legal line and intervene in campaigns. The ADF plan is something else entirely -- the group is recruiting pastors who will deliberately violate the law, invite IRS punishment, and then take the whole issue to court in order to challenge the law itself.
At first blush, the ADF argument may sound compelling. If a church wants to endorse a candidate, it's the church's business, right? If congregations don't like it, they can go to another church. If a pastor passes the collection plate for John McCain during Sunday services, church members can contribute or not contribute. This isn't, the argument goes, any of the government's business.
But this falls apart pretty quickly. Tax law doesn't stifle free speech; it applies conditions to tax exemptions.
Non-profit organizations receive a tax exemption because their work is charitable, educational or religious. But the benefit comes with conditions, most notably a requirement that tax-exempt organizations refrain from involvement in partisan politics. Since tax-exempt groups are supposed to work for the public good, not spend their time and money trying to elect or defeat candidates, it's hardly unreasonable.
If the rule were eliminated, there'd be a new loophole in campaign finance law -- people could donate to a church's partisan political efforts and the contribution would be tax deductible.
But what if some ministries believe partisan political work is absolutely necessary? They're in luck -- they have every legal right to give up their tax exemption and create an explicitly partisan organization, such as a PAC. Current law simply limits groups from being both tax-exempt ministries and engaging in partisan politics.
ADF, meanwhile, not only wants to let ministries have it both ways, it also wants these ministries to take a huge risk with no reward -- break the law, help partisan candidates, and risk IRS penalty. Why? Because the Alliance Defense Fund, a multimillion-dollar right-wing legal consortium, has a culture-war experiment it's anxious to try out.
Dozens of pastors have reportedly expressed interest in the ADF scheme, and are willing to serve as guinea pigs. We'll see how many go through with it in three weeks.