Baptist Joint Committee for Religious Liberty,

Washington, DC, November 6, 2017.

Hon. Kevin Brady, Chairman, House Ways and Means Committee, Washington, DC.

Hon. Richard Neal, Ranking Member, House Ways and Means Committee, Washington, DC.

Dear Chairman Brady and Ranking Member Neal:

On behalf of the Baptist Joint Committee for Religious Liberty (BJC), an 81-year-old agency serving 15 Baptist bodies on legal and policy matters relating to religious liberty and the separation of church and state, I write to express strong opposition to Section 5201 of the Tax Cuts and Jobs Act. This provision seriously undermines the independence and integrity of our houses of worship and denominations by creating an exemption to the partisan campaign prohibition that applies equally to all 501(c)(3) organizations. This attempt to encourage certain religious organizations to engage in partisan campaigning is constitutionally problematic following the Supreme Court’s application of the Establishment Clause in Texas Monthly v. Bullock.

We are committed to ensuring that the free speech rights for houses of worship and members of the clergy are respected. We do not share the view that current law prohibiting 501(c)(3) organizations from participating and intervening in partisan candidate campaigns infringes on those free speech rights. We joined with more than 100 other religious and denominational organizations in a letter to Congress, originally sent in April, saying we “strongly oppose any effort to weaken or eliminate protections in the law that prohibit 501(c)(3) organizations, including houses of worship, from endorsing or opposing political candidates.” The full letter is attached to my testimony.

In 2002, the House voted down legislation offered by Rep. Walter Jones, called the Houses of Worship Political Speech Protection Act (H.R. 2357). The BJC co-led the coalition of religious groups opposing that legislation, which failed by a House vote of 178-239. We continue to think there is no reason to change the way the law works now, and we are very concerned about the consequences of weakening the protection for houses of worship. For more than 60 years, all 501(c)(3) organizations have been required to refrain from partisan campaign involvement in exchange for receiving that most-favored tax status. The prohibition has allowed charitable organizations, including our houses of worship, to concentrate on their exempt purposes and not be distracted or co-opted by partisan campaigns.

Current law strikes the right balance in protecting the integrity and independence of our religious sector. The tax law prohibition is not a divorcement of politics from houses of worship. Many churches feel that they are called to be “political” and to “speak truth to power” on a variety of social issues, and nothing in the tax law prevents pastors from speaking out from the pulpit on the issues, no matter how controversial.

Houses of worship can encourage voting, engage in voter registration drives, host candidate forums, distribute nonpartisan education materials, and invite all candidates for an office to speak during a worship service.

Pastors and other leaders can endorse and oppose candidates in their personal capacities and without using the resources of the church. Whether and how openly they want to do this is a personal decision. Pastors know that their reputations will rise and fall with individuals they endorse and therefore may be reluctant to publicly endorse and oppose candidates. They also consider the impact that their endorsements will have in their spiritual communities, particularly with those who may support another candidate.

But what is not permitted–and what most clergy and churchgoers don’t want in any event–is for the tax-exempt 501(c)(3) entity to endorse or oppose candidates. Polling consistently shows that large majorities–70 or 80 percent depending on the survey–oppose candidate endorsements in church. And when just clergy are asked, the numbers are more like 90 percent, including among evangelical pastors.

These numbers are not surprising given the negative effects endorsements would have on houses of worship. Pastors and churchgoers I talk with think this would be a terrible idea for their congregations, dividing what are otherwise rather politically diverse communities and distracting them from their religious mission. Congregants also choose to worship in faith communities for reasons other than hearing a political ad. There are plenty of places in our culture today to engage in partisan electoral campaigns. Most people I know don’t want church to be one of those places.

We also recognize the powerful prophetic voice with which the church speaks to power. That voice is threatened whenever the church associates itself too closely with the government or its officials.

Creating an exemption for houses of worship would expose churches to political pressure to endorse candidates during primaries and elections at all political levels, as the campaign intervention prohibition applies not only to presidential and congressional elections but to every state and local race, too. Many candidates and donors supporting candidates would have a strong incentive to put pressure on churches to become involved in their campaigns, particularly given the highly-valued tax status churches enjoy. Donors to churches, like all other 501(c)(3) organizations, receive a tax deduction for their contributions. Churches also receive automatic 501(c)(3) tax status and are not required to file the Form 990 information return. Combining tax deductibility with these permissible accommodations for churches would make houses of worship particularly vulnerable targets for partisan campaign activity by political donors and others seeking to influence local, state, and national elections.

The legislative “solution” that has been put forward would threaten great harm to houses of worship. This bill injects a new subjective standard for the IRS to enforce, allowing political campaign involvement if it is “in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and results in the organization incurring not more than de minimis incremental expenses.” What does “ordinary course” mean? What is the organization’s “regular and customary activities in carrying out its exempt purpose”? What is “de minimis” compared to the organization’s total budget? What is “incremental”? These are all line-drawing questions that would fall on the IRS, which would have a mandate to enforce this new standard with limited resources and with likely much more activity in this area, given the new permissible standard and political pressure to be involved. We would either see lack of enforcement, rendering the statutory limitations meaningless, or we would see troubling entanglement of the IRS in a church’s affairs. Neither outcome would be an improvement on our current system.

Jesus taught us to render unto Caesar what is Caesar’s and to God what is God’s. Permitting tax-exempt churches to endorse candidates in a “sermon . . . or other presentation” during their “services or gatherings” threatens to fundamentally alter the very nature of and esteem for our religious sector. This approach does not bode well for religion or religious liberty.

Respectfully,

Amanda Tyler,
Executive Director,Baptist Joint Committee for Religious Liberty.

(Congressional Record – Tax Cuts And Jobs Act Part 1)

(Congressional Record – Tax Cuts And Jobs Act Part 2)

(Congressional Record – Tax Cuts And Jobs Act Part 3)

(Congressional Record – Tax Cuts And Jobs Act Part 4)

(Congressional Record – Tax Cuts And Jobs Act Part 5)

(Congressional Record – Tax Cuts And Jobs Act Part 6)

(Congressional Record – Tax Cuts And Jobs Act Part 7)

(Congressional Record – Tax Cuts And Jobs Act Part 8)

(Congressional Record – Tax Cuts And Jobs Act Part 9)

(Congressional Record – Tax Cuts And Jobs Act (Part 10)

(Congressional Record – Tax Cuts And Jobs Act Part 11)

(Congressional Record –Tax Cuts And Jobs Act Part 12)