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WASHINGTON LETTER Nov-17-2011 (880 words) Backgrounder. With photo. xxxn
Campaign do's and don'ts remain the same, but new mood seen in US
By Nancy Frazier O'Brien
Catholic News Service
WASHINGTON (CNS) -- The names on the ballot may change from one election to another, but the guidelines for what tax-exempt religious organizations can and cannot do in a political campaign remain basically unchanged.
"The law says that organizations exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, which includes charities and churches, may not participate or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office," the Internal Revenue Service says on its website.
That means no endorsements, checklists, guides promoting one candidate over another or sample ballots by tax-exempt parishes and organizations or their publications.
But it does not prevent religious leaders or members of other tax-exempt organizations from speaking out on the issues, organizing voter registration drives or nonpartisan educational forums or publishing candidates' responses to a questionnaire as long as the questions cover a broad range of issues and do not reflect any bias.
"The rules are still the same. There has been nothing that has changed substantially" since the 2008 presidential elections, said Deirdre Dessingue, associate general counsel at the U.S. Conference of Catholic Bishops. "But there has been a change in the mood."
She cited several factors affecting that change in mood -- a 2010 U.S. Supreme Court on corporate contributions to political campaigns that led some to question the limits on political intervention by charitable organizations; a district court ruling in Minnesota that IRS determinations about whether to investigate a church's tax-exempt status were being made by officials at too low a level; and continuing efforts by the Alliance Defense Fund to draw the IRS into a battle with a church whose pastor has endorsed a political candidate from the pulpit.
More than 500 Protestant ministers from 46 states and Puerto Rico participated in the Alliance Defense Fund's fourth annual Pulpit Freedom Sunday Oct. 2 by preaching sermons that presented biblical perspectives on candidates' political positions.
"ADF hopes to eventually go to court to have the IRS rule known as the Johnson Amendment struck down as unconstitutional for its regulation of sermons, which are protected by the First Amendment," said a news release from the organization.
"Churches should be allowed to decide for themselves what they want to talk about," said Erik Stanley, ADF senior legal counsel. "The IRS should not be the one making the decision by threatening to revoke a church's tax-exempt status."
That approach is far from the stand taken by the USCCB, however.
"Our advice remains the same," Dessingue said. "We advise our dioceses and parishes to always check with" church legal advisers in their area before any actions or utterances that could be construed as a political endorsement.
She said parishes should be especially cautious about allowing the distribution of outside voter guides at the back of the church or in church parking lots. "They might have been prepared by organizations that are not 501(c)(3) organizations and that do not have to abide by the same rules," Dessingue said.
A 2004 voter guide put out by Catholic Answers, a California-based group that describes itself as "one of the nation's largest lay-run apostolates of Catholic apologetics and evangelization," prompted an IRS investigation even though it did not include the names of any candidates for political office.
The IRS began a separate investigation into two e-letters sent by Karl Keating, Catholic Answers president, questioning whether Sen. John Kerry, a Catholic from Massachusetts who was the 2004 Democratic presidential nominee, should receive Communion at Mass because he supported keeping abortion legal.
Catholic Answers was ordered to pay excise taxes for 2004 and 2005, but the IRS returned the taxes with interest in 2009, saying that the alleged political activity "was not willful and flagrant." Catholic Answers contended throughout the process that the e-letters were not political activity.
Although both investigations were eventually closed, James Bopp Jr., an attorney representing Catholic Answers, announced Oct. 21 that the organization would ask the U.S. Supreme Court "to let it sue the IRS for improperly taxing its constitutionally protected political speech." Lower federal courts said Catholic Answers had no standing to sue because the money had been refunded.
"This allows the IRS to harass and penalize nonprofits who discuss public officials who are also running for office while leaving those nonprofits without any recourse: simply return the money at the last minute and never be sued for taxing protected speech that shouldn't be taxed in the first place," Bopp said.
For those who would like to get the IRS' guidance on political campaigns directly from the source, the agency offers at minicourse on "Political Campaigns and Charities: The Ban on Political Campaign Intervention" at www.stayexempt.irs.gov/Portals/0/PDF/Political_Campaigns_and_Charities.pdf.
The U.S. bishops' "Faithful Citizenship" website at www.faithfulcitizenship.org offers guidelines for parishes that focus as much on the do's of political responsibility as on the don'ts.
"While it is important to be clear about what we can't do, the most important thing to focus on is what we can do," it says. "In a democracy, loving our neighbor and caring for the least among us means supporting leaders and policies that promote the common good and protect society's most vulnerable members. Helping Catholics to recognize and act on this dimension of their faith is an essential task for parish leaders."
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