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ACLJ: Churches need not fear IRS if voter guides are neutral

WASHINGTON (BP)–Whether churches have any reason to fear the wrath of the Internal Revenue Service in this year’s election season on the basis of distributing voter guides like those produced by Christian Coalition depends on which organization at opposite poles of the church-state spectrum is asked.

Neutral guides are not a problem, according to the American Center for Law and Justice. Churches should beware, warned Americans United for Separation of Church and State.

A recent IRS memorandum to tax-exempt organizations warned churches and other charities to be careful about their education efforts during this fall’s campaigns.

Organizations that are tax-exempt under section 501 (c) (3) of the tax code “are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for public office,” the memo said. “These organizations cannot endorse any candidates, make donations to their campaigns, engage in fund raising, distribute statements or become involved in any other activities that may be beneficial or detrimental to any candidate.”

Forums or debates sponsored by tax-exempt organizations are permitted if they do not demonstrate a preference for or against a candidate, according to the memo.

In its memo, the IRS cited a 1988 incident in which the Association of the Bar of the City of New York was barred from 501 (c) (3) status even though its published ratings of candidates were nonpartisan. “Thus, activities that encourage people to vote for or against a particular candidate on the basis of nonpartisan criteria nevertheless violate” the tax-code regulations, the memo said.

In response, Americans United Executive Director Barry Lynn, whose organization’s ongoing campaign against the religious right often targets the Christian Coalition, said the July 5 memo was a reminder churches should avoid that organization’s voter guides.

“Pastors should see this statement as one more reason not to distribute Christian Coalition voter guides,” Lynn said in a written release. “As the IRS made clear today, handing out materials that steer voters toward certain candidates can jeopardize your tax exemption.”

Lynn’s assertion is off-base, and “[t]hat’s a very nice way of saying it,” said Mark Troobnick, senior litigation counsel with the American Center for Law and Justice. “A statement like that is unsurprising from Barry.”

A church may distribute a voter guide as “long as it presents the response of … candidates fairly and accurately” and does not endorse a candidate, Troobnick said.

Troobnick acknowledged the IRS “has disputed with a wide variety of groups concerning their voter guides” but said he is unaware of any specific case based solely on voter guides in which the IRS has threatened to revoke the tax-exempt status of a church.

On its Internet site, the ACLJ provides the following guidelines for voter guides:

— All viable candidates must be included;

— Statements on candidates must be unbiased;

— The candidates’ positions should be on a broad range of issues;

— Candidates cannot be endorsed nor individuals instructed whom to vote for or against;

— Editorial comments grading a candidate’s positions may not be included.

The Christian Coalition — which, like ACLJ, was founded by Pat Robertson — plans to distribute 70 million voter guides this fall, a spokesman for the organization said.

During the last two decades, the coalition and other organizations, including both liberal and conservative groups at the national and state levels, have published and distributed voter guides. They typically consist of the candidates’ positions on several issues of interest to each organization’s constituency. Christian Coalition and other pro-family organizations normally have circulated their guides in churches.

In a recent article for a Southern Baptist publication, ACLJ chief counsel Jay Sekulow admitted church involvement in the political process “can be a confusing area of the law” but said three rules should be adhered to:

— “Endorsing or opposing a candidate for office [verbally or in print] is off limits and should not be undertaken by your church;

— “Neutral voter guides are fine;

— “Lobbying and taking a stand on legislative and ballot measures is fine, just keep it an insubstantial amount in terms of both money and time expenditures.”

What constitutes a substantial amount has varied depending on the court, Sekulow wrote in this year’s convention issue of Light, the magazine of the SBC’s Ethics & Religious Liberty Commission.

Different courts have set the standard at 5 and 10 percent of total expenditures used for influencing public policy, Sekulow said. Other courts have utilized a “balancing test” based on the tax-exempt organization’s purposes to determine whether it was using a substantial portion of “its objectives [not just expenditures]” to seek to influence legislation or a ballot initiative, he said.

“For the average church, taking a position on one or two legislative or ballot propositions [a year] is highly unlikely to constitute a substantial portion of its activities and expenditures,” Sekulow said.

In 1995, a small church in New York became the first legitimate church to be stripped of its tax exemption by the IRS. The IRS ruled against The Church at Pierce Creek in Vestal, N.Y., after an investigation of advertisements in USA Today and The Washington Times four days before the 1992 election. In those issues, the church and others sponsored the same full-page ad under the title “Christian Beware.” The ad warned Christians not to “put the economy ahead of the Ten Commandments.” It asked how Christians could vote for Bill Clinton, citing his support of abortion, homosexual rights and condom distribution in schools, as well as Scriptures opposing such positions. The ad also included in small print a notice tax-deductible gifts to pay for it would be accepted.

In May of this year, the U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld a federal judge’s 1999 decision supporting the IRS ruling against the church.