What can the church do legally in the political realm?
What can the church do legally in the political realm? (iStock photo )

As the fall 2016 campaigns move into the spotlight, the stakes run deeper, the ante goes higher, and emotions begin to surface.

To be sure, churches and, more specifically, church leaders will play a huge role in the lead-up to the 2016 elections as many pivotal issues, social issues especially, move to the forefront in what promises to be one of the most critical elections of our modern era.

So what's a church to do? What's a pastor to say or not say when so much that is a part of our core belief system hangs in the balance? As strongly as a local church may feel about the issues and the candidates that appear on the 2016 ballot, the laws that govern the election season are very specific about what you are allowed to say ... and not say.

The problem is, most churches are pretty fuzzy when it comes to the IRS and their 501(c)(3) rules and regulations as they relate to elections, but the truth is, I have good news. There is a lot you can do legally to help influence the direction of our nation in the upcoming election season, without attracting the ire or even the attention of the IRS.

In the months ahead, and especially in the six-month run-up to Election Day, several watchdog groups will conduct all-out campaigns of their own in an attempt to silence the church altogether. The Problem is, they come on very strong and can be intimidating. One group in particular, (1) Americans United for Church and State, launched a national campaign in 2004 to monitor churches nation-wide in an effort to keep churches from distributing voter guides. They were very successful in their campaign as a large number of churches simply bowed out of the process altogether due solely to intimidation and a lack of understanding about their rights as a church.

The truth is, these groups are powerless to do anything more than report you to the IRS should you cross the legal line for what is permissible and what is not. Don't cross the line and they become nothing more than a paper tiger ... a political peanut gallery.

So, let's define the boundaries by exposing a few of these urban legends and election season misnomers. Let's look at some of the most common lies about the church's role in an election season, and see if we can't replace those lies with legal facts.

Here are some lies about the role of the church in an election season:

Lie No. 1

On issues that are near and dear to the heart of churches, such as abortion, same-sex marriage or gambling, it is unlawful for a church to advocate for or against the proposed adoption of a law through a referendum of the people. In other words, a church cannot address or take a position for or against political issues from the pulpit or in any official church communication.

Truth

It is perfectly lawful for churches and other nonprofits to be involved in elections—that is to advocate for or against the adoption of a law through a referendum of the people (a vote at the polls). The IRS prohibition on partisan politicking concerns individuals seeking public office, not issues. The church can say anything it wants about a ballot issue, whether it supports its adoption or defeat. However, such teaching and advocacy may not include expression of support for a particular political candidate or party.

The only limit imposed by the IRS involves the costs associated with any such lobbying must be "insubstantial," which means that the costs for any efforts by a church or nonprofit associated with efforts to support or defeat a bill must not exceed 20 percent of the group's budget in any given year.

As recently as 2000, a federal appellate court squarely rejected a church's claim that the First Amendment's free exercise of religion clause allowed the church to urge the public to vote against a candidate. Branch Ministries and Dan Little, Pastor v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000); see also Bob Jones University v. United States, 461 U.S. 574, 603 (1983) (Supreme Court held that "not all burdens on religion are unconstitutional ... The state may justify a limitation on religious liberty by showing that it is essential to accomplish an "overriding governmental interest." (2) The fact that a church may be motivated by its religious principles will therefore not prevent a church from losing its tax-exempt status and facing other penalties if it supports or opposes any candidate.

Lie No. 2

Pastors and church leaders may not endorse or participate in any political campaign for a candidate or an initiative as individual citizens.

Truth

While it is wise for pastors not to endorse or participate in the campaign of an individual candidate, the actual law says that pastors or any other church leader or congregant may endorse candidates as individuals in forums outside the church, or work on behalf of candidates during their personal time. The line of demarcation is simply this: Pastors and churches as a whole cannot endorse a specific candidate or political party using any kind of church literature, publications, social media or even verbal in your role as pastor. You simply can't do it. But as an individual, and while not using any kind of church role or anything that would appear as church-connected in any way, you may make your position known as an individual. But be careful ... be very careful.

In its recently updated Tax Guide for Churches and Religious Organizations (3) (Publication 1828), the IRS provides the following examples of prohibited activities by churches:

  • Church Newsletter. Minister B is the minister of Church K. Church K publishes a monthly church newsletter that is distributed to all church members. In each issue, Minister B has a column titled "My Views." The month before the election, Minister B states in the "My Views" column, "It is my personal opinion that Candidate U should be re-elected." For that one issue, Minister B pays from his personal funds the portion of the cost of the newsletter attributable to the "My Views" column. Even though he paid part of the cost of the newsletter, the newsletter is an official publication of the church. Since the endorsement appeared in an official publication of Church K, it constitutes campaign intervention attributed to Church K.

While pastors are also allowed to personally support and even endorse candidates, they must not use any church resources, such as letterhead, newsletters or facilities, to do so and must make it clear that they are speaking on their own behalf and not on behalf of the church.

Lie No. 3

Churches may not send questionnaires to candidates and ask them where they stand on issues. Furthermore, churches may not distribute the answers to the congregation as this may unduly influence a voter.

Truth

Churches may send questionnaires to candidates and ask them where they stand on issues. However, before distributing the answers, churches should make sure the answers are accurate. Questionnaires should be sent to all candidates, and the church needs to be careful to not make inferences or add attach meaning to the results.  It is wise to simply let the raw facts speak for themselves.

Lie No. 4

Churches are not allowed to contribute financially to any political issue or initiative.

Truth

As previously stated, churches may not contribute money to candidates, solicit contributions on candidate's behalf or donate to candidates' political action committees. Churches may not set up their own PACs. Churches may, however, contribute to ballot initiatives and issues that are of relevance to their beliefs on social issues and other relevant initiatives. But remember, the costs for any efforts by a church or nonprofit associated with efforts to support or defeat a bill must not exceed 20 percent of the group's budget in any given year.

1. Americans United for Separation of Church and State: Our Issues.

2. BP News: ANALYSIS: Churches & politics: A primer for following the law July 26, 2004 By Grange, King & Kao Baptist Press

3. Tax Guide for Churches and Religious Organizations (Publication 1828)

NOTE: Look for the second part of this story later this week.

Dr. Rich Rogers is the pastor of Jentezen Franklin's Connection and Discipleship Free Chapel OC in Irvine, California.

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