For federal income tax purposes most churches qualify for exemption from tax under Section 501(c)(3) of the Internal Revenue Code. Political speech by 501(c)(3) organizations can be divided into two categories:
Not Permitted: Partisan Speech
Churches and other 501(c)(3) organizations have been prohibited from supporting specific political candidates since the passage of the Johnson Amendment in 1954. The Internal Revenue Code provides that, by definition, 501(c)(3) organizations do 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.” In other words, taking an active role in a political campaign can negate a church’s tax-exempt status. If a church is determined to have violated this rule it may be required to pay income tax for every year it has failed to qualify for the exemption due to its political activities.
Activities that could risk violating the Johnson Amendment include most forms of material support for a specific political campaign. For example, organizing volunteers to prepare a mailing for a candidate or soliciting donations on behalf of a campaign may expose churches that engage in these activities to risk if they are found in violation of the Johnson Amendment.
IRS guidelines indicate that a church can still engage in nonpartisan political activity without violating these rules. For example, a church can distribute nonpartisan voter information (such as a collection of statements by different candidates). A church can also host debates among candidates. A key focus in these examples will be whether a particular candidate is shown favor, or if the activity is truly neutral.
The only partisan speech that is allowed to be made by church employees are comments not made in any church facility or in church publications. The comments must include a statement that the opinions being expressed belong only to the individual and are not intended to represent the church.
Not Permitted: “Substantial” Lobbying
A “substantial part” of a 501(c)(3) organization’s activities may not be directed at influencing legislation (including regulatory rulemaking). A church is allowed to take positions on issues that are important to it and its congregation. Such “issue advocacy” can even touch on topics that are central to a political campaign without running afoul of the rules. But the line between issue advocacy and candidate endorsement is often blurry, and churches need to think carefully about how their specific context may affect the appropriateness of devoting significant resources or time to an issue that may be construed as partisan.
The IRS gives a number of parameters that can factor into the partisan character of issue advocacy. The parameters include the proximity to an election, any specific mention of a candidate’s position on the issue, and whether the issue is a key topic of the campaign. Given the stakes involved and the complicated factual analysis required to reach a reliable decision, churches that want to express themselves about issues that are central to ongoing political campaigns should consult with an attorney before taking action.
Permitted: Nonpartisan Speech
Federal law does not restrict a church’s nonpartisan speech. In practice this means that a church may freely encourage its congregation to vote. It may also do other things that touch upon political matters, including:
- Providing members of the congregation with nonpartisan information about issues in an election.
- Organizing voter registration drives.
- Hosting candidates as speakers, provided that each candidate on the ballot is given an equal opportunity to participate.
- Holding discussions about the relationship between church doctrine and ballot issues.
The Church Law Center of California assists churches with organization, governance, and risk management. We can help your church craft policies so it is in a better position to address problems as they arise. To find out how we can help your church, call us today at (949) 892-1221 or reach out to us through our contact page.