Recent attention to the role of religion in electoral politics has kindled new interest in what a church (1) can say and do during an election season. Under federal tax law, churches and other charitable organizations receiving favorable tax treatment under section 501 (c)(3) (2) cannot "participate in, or intervene in ... any political campaign." (3) The Internal Revenue Service (IRS) and the courts have interpreted this ban as both broad and absolute. (4) It reaches not only the use of funds--an important means of regulating campaign finance--but also what a religious leader might say from the pulpit. Interpreting the general rule, the IRS draws a distinction between acceptable issue advocacy and unacceptable campaign intervention judged by a "facts and circumstances" (5) test that encourages silence on the most pressing issues of the day. Moreover, for the first time ever, the IRS has launched an organized effort to enforce this prohibition, especially against churches. (6) In February 2006 the IRS issued its final report (7) on a pilot enforcement program, the Political Activities Compliance Initiative (PACI). Of the 110 organizations investigated, 43% were churches. (8) The IRS expanded the program for the 2006 mid-term elections, toward the end of providing a rapid, targeted response to alleged violations. (9) In practice, this broad and absolute prohibition, together with the government's new effort to enforce it, places an unacceptable restraint on faith.
One of the more visible fruits of this effort is the investigation of All Saints Episcopal Church, one of Southern California's largest and most liberal congregations. (10) The IRS has warned the church that it risks losing its tax-exempt status on account of a sermon delivered a few weeks before the 2004 election. The sermon described an imaginary debate between Jesus on the one hand and Senator Kerry and President Bush on the other. (11) While disavowing any intention to tell congregants how to vote, the rector criticized both candidates, saving his harshest words for the President. He concluded by urging the congregation to "vote your deepest values." This new willingness to enforce the prohibition against churches has forged an unusual alliance in opposition that spreads across the political and theological spectrums. (12)
I argue for a limited exemption from this prohibition for religious congregations. Several scholars have criticized the prohibition in the past. (13) Building on this discourse, this Article makes two distinct contributions. First, it offers an account of the unique character of faith as both total and communal, setting faith communities apart from other charitable organizations and sometimes demanding different treatment. Second, this Article looks to Congress and not the courts for relief. Most critics search for a judicial remedy, either as a matter of constitutional law under the Free Exercise Clause or under the Religious Freedom Restoration Act. (14) Relief from the courts, however, is unrealistic in light of controlling Supreme Court precedent. Moreover, the important policy concerns at stake and the potentially broad impact of an exemption make the legislature especially suited for this task. Toward this end I sketch a legislative proposal that seeks to balance the twin goals of removing governmental restraint on the practices whereby a religious community discerns how to live out its faith in the world, while at the same time preserving the important goal of regulating campaign finance. A critical look at the rationales supporting the prohibition opens up a space to craft a more narrow rule. Part I describes the prohibition and the rationales behind it. Turning to a critical assessment, Part II examines several problems with the prohibition, including its flawed rationales, its unacceptably vague standard, and the undue restraint it places on faith. Finally, Part III argues in support of a statutory exemption and sketches what this exemption might look like. …