Saturday, April 21, 2012

Did Bishop Jenky of Peoria Violate the Campaign Intervention Rule?

Readers of this blog almost certainly are aware that Section 501(c)(3) contains a prohibition on charitable organizations "interven[ing] in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." The campaign intervention prohibition always seems to take center stage during the presidential campaign cycle, and it always seems that churches are at the center of this debate.

So here we go again.  On April 14, Bishop Daniel Jenky of the Diocese of Peoria delivered a homily that would serve as an excellent exam question on these issues.  The full text of the homily is available here, but the part of the homily most relevant to the legal question posed in the title to this post is as follows:

Remember that in past history other governments have tried to force Christians to huddle and hide only within the confines of their churches like the first disciples locked up in the Upper Room.

In the late 19th century, Bismarck waged his “Kulturkampf,” a Culture War, against the Roman Catholic Church, closing down every Catholic school and hospital, convent and monastery in Imperial Germany.

Clemenceau, nicknamed “the priest eater,” tried the same thing in France in the first decade of the 20th Century.

Hitler and Stalin, at their better moments, would just barely tolerate some churches remaining open, but would not tolerate any competition with the state in education, social services, and health care.

In clear violation of our First Amendment rights, Barack Obama – with his radical, pro abortion and extreme secularist agenda, now seems intent on following a similar path.

Now things have come to such a pass in America that this is a battle that we could lose, but before the awesome judgement seat of Almighty God this is not a war where any believing Catholic may remain neutral.

This fall, every practicing Catholic must vote, and must vote their Catholic consciences, or by the following fall our Catholic schools, our Catholic hospitals, our Catholic Newman Centers, all our public ministries -- only excepting our church buildings – could easily be shut down. Because no Catholic institution, under any circumstance, can ever cooperate with the instrinsic evil of killing innocent human life in the womb.

No Catholic ministry – and yes, Mr. President, for Catholics our schools and hospitals are ministries – can remain faithful to the Lordship of the Risen Christ and to his glorious Gospel of Life if they are forced to pay for abortions.

OK.  So we know that Bishop Jenky feels that Barak Obama is waging war against the Catholic Church. But did the Bishop's homily violate the law?  Some folks think so: The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, sent a complaint to the IRS alleging that the homily in fact violated the campaign intervention prohibition.  Others believe the limitation itself is unconstitutional.  Two of this blog's editors have written extensively on the constitutional aspect.  See Johnny Rex Buckles, Does the Constitutional Norm of Separation of Church and State Justify the Denial of Tax Exemption to Churches that Engage in Partisan Political Speech?, 84 Ind. L.J. 447 (2009); Johnny Rex Buckles, Is the Ban on Participation in Political Campaigns by Charities Essential to their Vitality and Democracy? A Reply to Professor Tobin, 42 U. Rich. L. Rev. 1057 (2008); Lloyd Mayer, Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U.L. Rev. 1137 (2009).

But I'm more interested for now in whether Jenky violated the rule as currently interpreted by the IRS. For this, we have to go to the current state of the law on the subject, IRS Revenue Ruling 2007-41 (available here). The relevant part of this ruling deals with differentiating "issue advocacy" (which is permitted) from campaign intervention, which is not. That part of the ruling states as follows:

Section 501(c)(3) organizations may take positions on public policy issues, including issues that divide candidates in an election for public office. However, section 501(c)(3) organizations must avoid any issue advocacy that functions as political campaign intervention. Even if a statement does not expressly tell an audience to vote for or against a specific candidate, an organization delivering the statement is at risk of violating the political campaign intervention prohibition if there is any message favoring or opposing a candidate. A statement can identify a candidate not only by stating the candi­date’s name but also by other means such as showing a picture of the candidate, referring to political party affiliations, or other distinctive features of a candidate’s platform or biography. All the facts and circumstances need to be considered to determine if the advocacy is political cam­paign intervention. Key factors in determining whether a communication results in political campaign intervention include the following:

  1. Whether the statement expresses ap­proval or disapproval for one or more candidates’ positions and/or actions;
  2. Whether the statement is delivered close in time to the election;
  3. Whether the statement makes reference to voting or an election;
  4. Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office;
  5. Whether the communication is part of an ongoing series of communications by the organization on the same issue that are made independent of the tim­ing of any election; and
  6. Whether the timing of the communication and identification of the candi­date are related to a non-electoral event such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office. [NOTE: the numbers are supplied by me; these are bullets in the actual ruling, but I'll use the numbers in my analysis below]

A communication is particularly at risk of political campaign intervention when it makes reference to candidates or voting in a specific upcoming election.

So let's walk through the IRS factors.  Did Bishop Jenky "express approval or disapproval for one or more candidates' positions" in his homily?  I think undeniably so.  Was the statement delivered "close in time" to an election?  Fuzzy, but we clearly are in the 2012 election cycle, so I'd say yes to this as well.  Does the statement "make reference to voting or an election"?  You betcha, to paraphrase a past vice-presidential candidate.  How about "whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office"?  Not quite as clear, but I think Romney and the rest of the now-defunct Republican presidential primary candidate field made their views on this point quite well-known.  What about item 5?  I'd say this might be the one factor that favors the Bishop: the leadership of the Catholic Church "went ballistic" on this issue before the campaign season really geared up.  But 6 is clearly not true. So, my view is that Jenky violated five of the six factors identified by the IRS in Rev. Rul. 2007-41, and therefore violated the campaign prohibition rule.  Since he clearly was acting in his capacity as a leader of the particular exempt organization at issue here (the Diocese of Peoria), my conclusion is that the IRS should indeed investigate this matter and should conclude a violation occurred.  Your mileage may vary, as they say.  And again, I'm not commenting on the constitutionality of the prohibition; I'm only noting that under the current state of the law as interpreted by Rev. Rul. 2007-41, Jenky blew it, and if the IRS wants any credibility on this subject, they need to carry through with an investigation and finding on the matter.


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First of all what happened to separation of state and church?? Since when does a Bishop have to get his sermons approved by the state. I thought there was freedom of speech in this country. Certainly liberal professors at many tax-exempt university preach regularly against conservation candidate and no one questions their right to speak their mind or talks about taking away their tax-exempt status. This whole issue about Bishop Jenky lecturing his faithful about historical similarity between out president and past historical figures is something would only be prohibited if we lived in a totalitarian dictatorship. Maybe some people think we live in the USSR. Also, note the obvious, that Bishop Jenky did not ask anyone to vote for or against any candidate.

Posted by: Joe Plummer | Apr 23, 2012 3:57:32 PM

Hm... how would something like this factor into a discussion on separation of Church and State and campaign intervention?
Note President Obama's comments at the end of the video regarding organizing congregation captains within faith communities.

Posted by: Marian | May 1, 2012 3:35:50 PM

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