Protecting Free Speech for Clergy: A Bill before Congress Would Nullify Some Federal Tax Practices That Are Used to Prevent Free Speech and the Free Exercise of Religion

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Federal tax law discriminates against the clergy, especially as it is enforced by the Internal Revenue Service. The First Amendment guarantees both freedom of speech and the free exercise of religion. The Constitution places any restriction on either of those liberties beyond the reach of federal officers; at least that is the hierarchy of the legal system created by the Founding Fathers. Current practice is otherwise.

Lyndon Johnson's Tax Law

In 1954, then-Senator Lyndon Johnson (D-Texas) championed a bill that would amend the Internal Revenue Code to provide that churches and other religious and charitable organizations enjoying tax-exempt status under Section 501(c)(3) could lose their tax-exempt status by participating in prohibited activities. As tax-exempt entities, donations to them are not treated as taxable income. But this benefit can be lost if a 501(c)(3) charity engages in a prohibited activity. Johnson was seeking political revenge against charitable institutions that had supported one of his opponents. In the process his amendment to the tax laws made sweeping deprivations of First Amendment guarantees to a variety charitable institutions nationwide.

In a publication entitled Tax Guide for Churches and Religious Organizations, the IRS declares about those organizations: "No substantial part of its activity may be attempting to influence legislation, [and] the organization may not intervene in political campaigns." One problem: the ruling is open to interpretation. In defining the words "substantial part," the IRS says, "Whether a church's ... attempts to influence legislation constitute a substantial part of its overall activities is determined on the basis of all the pertinent facts and circumstances in each case." The guide declares that the IRS looks at the amount of time and money devoted to the activity.

This is dangerous wording. By using phrases like "no substantial part" the job of defining what is or is not "substantial" is left to the federal bureaucracy. Experience reveals a lack of uniformity among IRS personnel as to how much and what character of activity constitutes a substantial part. The IRS publication declares, in addition to losing tax-exempt status for supporting or opposing any candidate for public office, or attempting to influence legislation: "A church . …