On Sunday, hundreds of preachers are expected to celebrate something called "Pulpit Freedom Sunday" by sermonizing about the moral qualifications of candidates for public office. The event is organized by the Alliance Defense Fund, a Christian legal organization. The alliance is offering legal representation to clergy whose remarks might run afoul of the prohibition of politicking by churches. It's a challenge the Internal Revenue Service should take seriously.
Under the law, not only churches but other so-called 501(c)(3) tax-exempt organizations must not "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." The restriction, which dates back to the 1950s, is based on a sound principle: that organizations characterizing themselves as charitable and receiving a government benefit should refrain from election activity.
For some religious conservatives, this policy isn't just unwise; it's unconstitutional. But tax exemption isn't a constitutional right. It's the creation of Congress, which has the right to attach conditions to that benefit. Put another way, churches may have a 1st Amendment right to comment on elections, but they don't have the right to a tax exemption.
Two other criticisms concern the way the IRS enforces the restriction on politics in the pulpit. One is that the agency's policing of political preaching is so lackadaisical that the effort isn't worthwhile. But that picture is belied by statistics provided by the IRS. In the 2006 election cycle, the last for which the agency has published data, it received 237 referrals and selected 100 (44 churches, 56 non-churches) for examination, finding political activity in 26 cases.
The other criticism is that IRS enforcement has been subjective and sometimes politically motivated. Consider the inquiry into an antiwar sermon preached in 2004 at the All Saints Episcopal Church in Pasadena. In the sermon, the church's former rector presented a scenario in which Jesus participates in a debate with George W. Bush and John F. Kerry. The preacher didn't endorse either candidate but said that Jesus would have told Bush that his war strategy in Iraq "has led to disaster." In 2005, the IRS wrote the church that its tax exemption was in jeopardy; in 2007, the agency closed the investigation but continued to maintain that the sermon was illegal.
The ambiguous outcome of the Pasadena case suggests that the IRS needs to be more precise in its criteria for continuing with an investigation. The sermon in that instance may have gone right up to the line, but there is a line, and it divides criticism of candidates' policies from opposition to their election.
With the 2012 election season already in progress, the IRS needs to remind the participants in "Pulpit Freedom Sunday" that the law will be enforced — in a measured and consistent way.