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<blockquote>Under Sec. 501(c)(3) of the tax code, charities are absolutely prohibited from intervening in political campaigns by endorsing or opposing candidates for public office. This bar against campaign activities applies with full force to churches. There is no Supreme Court authority, under either the Religion Clauses or the Free Speech Clause of the First Amendment, that confers on churches a blanket exemption from tax-law requirements, such as the prohibition against political intervention, that apply even-handedly to churches and other charities.
IRS rules permit charities, including churches, to engage in nonpartisan voter education activities. As Election Day approaches, the Christian Coalition and other groups may ask churches to distribute "voter guides" to their members, contending that this is a permissible type of voter education. Churches should approach distribution of such voter guides with extreme caution.
Before agreeing to distribute a voter guide prepared by another organization, a church must ensure that the guide is truly nonpartisan and does not endorse or oppose any candidate, either explicitly or by implication. It does not matter that the church may not intend any political intervention. The IRS and the courts do not look to the church's motive, but to whether the voter guide in fact favors one candidate over another.
Election activity by charities, including churches, is currently a subject of intense IRS interest. The IRS recently said that it will have "zero tolerance" for violations, noting that the law "prohibits all forms of participation or intervention in any political campaign," even if the charity's involvement is "subtle" or "inadvertent." Several charities recently lost their tax exemptions for making implied endorsements of political candidates. And in delivering its recent warnings, the IRS specifically cited a case where a church had its exemption revoked for political activity in the 1992 campaign. The consequences of an IRS audit can be severe: even if a church does not lose its exemption and ability to receive deductible contributions, the IRS can impose monetary penalties against the church and its officials.
If a church distributes a partisan voter guide, it will constitute improper political activity by the church, even though someone else prepared the guide. In a recent speech, a high- ranking IRS official warned that the Service will examine all aspects of voter guides for signs of bias, including the array of questions presented, the size of type used for different candidates, and the photographs of candidates themselves. Thus, it is essential that churches consult their legal advisors and carefully review any voter guide before agreeing to distribute it. The fact that the Christian Coalition prepared a voter guide does not ensure that it is nonpartisan. The Christian Coalition is not a Sec. 501(c)(3) charity, and IRS rules thus allow it to engage in some political activity, such as disseminating voter guides that endorse or oppose candidates. By contrast, IRS rules absolutely prohibit a church from distributing a partisan guide.
In the past, the Christian Coalition has reportedly withheld distribution of its voter guides until the last Sunday before the election in order to maximize their impact. This mode of distribution could jeopardize a church's tax-exempt status if it prevents meaningful review of the guide before it is disseminated. Unless a church's legal advisors are given sufficient time to review the voter guide in advance of its distribution, the church will have no way of knowing whether the guide is truly nonpartisan and thus permissible for it to distribute.
The Christian Coalition has not as yet distributed its voter guides for the November 1996 election, and it has refused requests to release them earlier than in past years. Thus, it is not possible to advise pastors now whether these guides will comply with IRS requirements. The Coalition's publication of voter guides in prior elections, however, counsels careful scrutiny of the November 1996 guides when they finally appear. The Federal Election Commission has determined that the Coalition improperly engaged in partisan political activity when distributing voter guides during the 1990, 1992, and 1994 campaigns. Litigation on that subject is now pending in federal court.
The Christian Coalition contends that its voter guides are nonpartisan because they do not expressly endorse candidates and are based on candidates' responses to questionnaires. In fact, the tax rules are not so simple. A voter guide may implicitly favor a candidate even though it does not tell people how to vote or evaluate candidates with "plus" or "minus" signs. The overall content and presentation of the guide must be considered in order to determine whether it is even-handed, neutral, and objective in portraying candidates' positions.
If a voter guide exhibits bias in favor of or against any candidate, the IRS will treat it as electioneering activity, even if the guide disclaims any intent to make endorsements. Whether a voter guide is biased depends on all the facts and circumstances. The following "red flags" may indicate that a voter guide will be viewed as partisan by the IRS:
Focus on issues tracking an organization's known agenda. Nonpartisan voter guides usually describe candidates' positions on a wide range of issues important to the voting public. If the issues presented appear to have been selected to encourage readers to compare candidates' positions with those of the entity publishing the guide, the IRS may find an implied endorsement of the candidate whose position tracks the entity's own position. For example, in 1989 the IRS proposed to revoke the exemption of a foundation established to promote conservative Christian values in part because of voter guides it distributed during an election campaign. Because the guides identified the foundation's religious focus and emphasized issues on which its position was readily apparent -- parents' rights, abortion, ERA, homosexual rights, church school freedom, evolution, creationism, nuclear freeze, state lottery, and legalized prostitution -- the IRS saw the guides as an attempt to influence the election.
Unfair description of candidate's position. A voter guide based on candidate responses to questionnaires must report those responses accurately, with no editorial changes. If a voter guide misrepresents a candidate's responses in an effort to make the candidate appear extreme or radical, such bias may constitute implied opposition to that candidate and implied endorsement of his or her opponent. For example, the Christian Coalition typically asks candidates to complete questionnaires containing almost 100 questions, but it selects for inclusion in the voter guide only 6-10 responses that often vary from one electoral district to another. If these responses are chosen with a view to unfairly polarizing the candidates in order to make one candidate appear unacceptable, that would create a serious risk of bias. Bias may also occur if the voter guide omits key qualifying language from a candidate's questionnaire response, portraying the candidate as wholeheartedly "supporting" a position whereas his or her stance is actually more complex.
Unfair summary of candidate's voting record. A voter guide must be objective and even-handed in stating whether a candidate "supports" or "opposes" a particular position. For example, a voter guide could not fairly say that a candidate "supports" federal funding for indecent art on the basis of one legislative vote, if that candidate had opposed such funding in other legislative votes. Similarly, a voter guide could not fairly say that a candidate's position is "unclear" on federal funding for abortion, if the candidate had voted against such funding at every available opportunity.
Wide distribution close to election. When so-called "voter education" material is distributed widely on the eve of the selection, the IRS is more likely to regard it as political intervention designed to affect election outcomes.
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