Legal dos and don’t for pastors during an election yearBusiness Activity, Communication, Conflict, Human Resources, Latest News, LEADERSHIP, LEGAL, RISK MANAGEMENT Monday, February 1st, 2016
By David O. Middlebrook
Since 1954, churches — and other nonprofits in America — have been prohibited from engaging in certain kinds of political activity. While these limitations might be an affront to the moral conscience of many pastors across America, it has become a way of life for 501(c)(3) organizations.
Specifically, Congress prohibited nonprofits — including churches — from participating or intervening “in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.”1 These prohibited activities are known as “Political Campaign Activity” and occur when a church — or any 501(c)(3) organization — directly or indirectly participates or intervenes in “any political campaign on behalf of, or in opposition to, any candidate for elective public office.”2
It’s very important for all churches to understand that this prohibition is for campaign activity regarding candidates; churches may, however, engage in some legislative activity — lobbying and advocacy for issues, for example.
Every election year, we receive lots of questions asking what’s permissible and impermissible for churches and church leaders when it comes to political campaigns and legislative activities — in particular, regarding discussing the elections with their congregation, the public, and even their employees and board members.
Participating in prohibited political campaign activity can result in your church jeopardizing its tax exempt status, thus harming its reputation, and putting the tax deductibility of every donation at risk. So, as we kick off this election year, here are some different ways pastors and churches can (and can’t) be involved in political campaign and legislative activities.
The most common question we hear from church clients regarding elections and candidates is: As long as I say I’m supporting a candidate personally — and not in my position as the church’s pastor — am I OK?
Personal endorsements are permitted; however, unless they’re done correctly, the surrounding facts and circumstances might lead the IRS to determine that a pastor was acting in his or her official capacity.
The IRS looks at the conditions surrounding the endorsement. If an endorsement was made during a church’s official event — a Sunday morning service, for example — or in an official publication, such as a church newsletter (regardless of who pays for it), the endorsement won’t be considered “personal.” Asking a congregation to vote for a candidate during a church service will likely be viewed as a prohibited political campaign activity.
On the other hand, a local newspaper advertisement depicting a candidate with his or her supporters — including the name of a pastor and the church where he or she is employed — does not run afoul of IRS regulations. This is because the pastor didn’t endorse the candidate in his or her position during an official church activity. Rather, identifying the pastor and the church where the pastor is employed is only identifying one of the candidate’s supporters.
It’s not uncommon for churches to invite candidates or current public officials to speak to their congregations during regularly scheduled worship services or at special events open to the public (“public forums”). However, each opportunity for a candidate or public official to speak must be handled in a way that doesn’t interfere with elections.
For instance, a church can hold a public forum — and invite all the candidates seeking election to an office — to address the attendees. However, the church may not ask questions that lead the attendees toward one candidate, or a group of candidates. Typically, when churches host public forums, it’s advisable to ask all the candidates the same slate of questions and give each candidate equal time to speak. Cutting some candidate off early might be seen by the IRS as an indirect intervention into a campaign.
If your church invites public officials to speak, the timing of the upcoming election is considered in determining whether or not your church is endorsing a candidate for office. If the mayor of your city is invited to preach, pray or otherwise address the congregation on the Sunday morning before an election the following Tuesday, and the mayor is running for reelection — and the mayor encourages those in attendance to vote — this can easily be seen as a tacit endorsement by your church. This is especially likely if other candidates aren’t given the same opportunity.
Like all members of the general public, elected officials are welcome to attend church events. A pastor can acknowledge his or her presence, or even honor the elected official for non-political activity, such as a distinguished military career.
Voter guides and drives
For those who want to inform their congregants of the upcoming issues to be voted on, a voter guide — one which factually shows where candidates stand on issues — can be helpful. Here again, these tools must be neutral toward the candidates, fact-based and neither supportive nor dismissive towards any candidate.
Helping your congregants register to vote (without ties to any candidate) is also a great way to involve your members. Recently, some states have adopted specific regulations about how voter registration events must be conducted. If you don’t know the rules in your state, consult an attorney to make sure you’re in compliance.
Sometimes, issues themselves can identify a candidate — particularly in smaller elections with only two or three candidates. If you promote an issue that leaves only one choice of candidate, you run the risk of prohibited political campaign activity. Issues are important, and they should be discussed by pastors. But, if the issue promotion activity leaves only one available choice, then those activities are likely intervening with the election.
Voter rules are a difficult dynamic. Often, pastors feel prohibited from speaking out on topics on which our society is voting. Being able to navigate the legal dos and don’ts helps churches engage society at the voter booth.
The materials in this article are provided for informational purposes only and do not constitute legal advice. This article is intended, but not promised or guaranteed to be current, complete or up-to-date and should in no way be taken as an indication of future results. Transmission of the information in this article is not intended to create — and the receipt does not constitute — an attorney-client relationship between sender and receiver.
David O. Middlebrook is a founding shareholder of Anthony & Middlebrook and the Church Law Group in Grapevine, TX. His clients include high-profile charitable and religious organizations, both domestic and international.