President Trump and others in Washington have recently proposed doing away with the longstanding bar on churches becoming involved in partisan politics. Unfortunately, I have found to my dismay that many people have a simplistic understanding of the importance of keeping charitable, tax-exempt organizations (including houses of worship) out of partisan politics.
I have often been told something like, “What’s the big deal? Preachers talk about politics all the time. It’s their job!” That depends, however, on how you define “politics.” Speaking out on social issues is vastly different from endorsing or opposing a political candidate.
Current law allows charitable, tax-exempt organizations to speak out on political and social issues (for example, civil rights, abortion, and marriage equality.) Current law also allows some nonprofits, as well as nonprofit leaders speaking in a personal capacity, to weigh in on partisan matters. Current law also allows charitable nonprofits to engage in nonpartisan activities like voter registration drives. What current law does not allow is for a charitable nonprofit to endorse or oppose a candidate for office.
Those who want to change the law like to frame this issue as a violation of free speech. Let’s look more closely.
A tax-exempt organization organized under section 501(c) (3) of the Internal Revenue Code obviously gets a pass on paying taxes. In addition, and even more importantly, donors to the organization can deduct donations from their taxes. This special status is granted to charitable nonprofits in exchange for the work they do that benefits society at-large.
Among the benefits that accrue to such tax-exempt institutions are access to emergency services. You and I pay taxes to support things like fire departments and police; tax-exempt nonprofits don’t. But, if someone at a nonprofit calls 911, the service responds. Our tax dollars subsidize emergency services for the institution.
It’s one thing to subsidize emergency services; it’s quite another to subsidize political speech and activity. That’s why, if you’re a tax-exempt institution, you can use emergency services but you cannot participate in partisan politics. It’s not a question of free speech; it is subsidized speech.
The Supreme Court upheld this distinction between free speech and subsidized speech in 1983. At that time, Justice William Rehnquist wrote, “A legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right….” In other words, a church still has the right to endorse a candidate — but if it wants to do that, it must give up its tax-exempt status because taxpayers should not be forced to support a church or other nonprofit’s campaigning through tax exemptions.
This law applies to all 501(c) (3) organizations, not just houses of worship. What’s more, as David Heinen of the North Carolina Center for Nonprofits wrote in a recent op-ed , most charitable nonprofits want to keep it that way.
Changing the rules so that tax-exempt organizations can endorse or oppose candidates would open the doors to political pressure on these organizations and to the potential for them to become super PACs. Secular nonprofits must file a tax form that tracks all money that flows through the organization. Churches don’t have to file this form; they are essentially financial black holes. If your house of worship can support a candidate, why would you make a donation that isn’t tax-deductible to the candidate when you could give your church a tax-deductible contribution that could be used to benefit your candidate, or even be passed on directly to the candidate? The potential to add huge sums of dark money to politics is a little-noted but very real threat to our democracy.
Finally, poll after poll shows that Americans don’t want their preachers endorsing candidates. Surveys consistently show that at least two-thirds of Americans oppose allowing churches to endorse candidates. Even most preachers oppose the idea. The National Association of Evangelicals reported in February, 2017, that nearly 90% of evangelical leaders don’t think that pastors should endorse candidates from the pulpit. Allowing them to do so will divide communities whose primary purpose is not political. People don’t want their religious homes torn apart by politics.
It’s not simply a matter of a preacher (or the head of a secular nonprofit) standing up and saying, “Vote for so-and-so.” Tax-exemption is a privilege, not a right, and, reasonably, it comes with some strings attached. A church or other nonprofit that feels that its freedom of speech is being abridged by its nonprofit status should simply relinquish that nonprofit status so that it’s no longer obligated to you and to me, but only to its members.
Helen Wolfson is a Durham resident who believes in promoting justice, equity, and compassion in human relationships in a world that works for everybody.