For the past three years, the Internal Revenue Service hasn't been
investigating complaints of partisan political activity by churches,
leaving religious groups who make direct or thinly veiled endorsements
of political candidates unchallenged.
The IRS monitors religious
and other nonprofits on everything from salaries to spending, and that
oversight continues.
However, Russell Renwicks, a manager in the IRS
Mid-Atlantic region, recently said the agency had suspended audits of
churches suspected of breaching federal restrictions on political
activity.
A 2009 federal court ruling required the IRS to clarify which
high-ranking official could authorize audits over the tax code's
political rules.
The IRS has yet to do so.
Dean Patterson, an IRS
spokesman in Washington, said Renwicks, who examines large tax-exempt
groups, "misspoke." Patterson would not provide any specifics beyond
saying that "the IRS continues to run a balanced program that follows up
on potential noncompliance."
However, attorneys who specialize in
tax law for religious groups, as well as advocacy groups who monitor
the cases, say they know of no IRS inquiries in the past three years
into claims of partisanship by houses of worship.
IRS church audits are
confidential, but usually become public as the targeted religious groups
fight to maintain their nonprofit status.
"The impression created
is that no one is minding the store," said Melissa Rogers, a legal
scholar and director of the Center for Religion and Public Affairs at
Wake Forest University Divinity School in North Carolina. "When there's
an impression the IRS is not enforcing the restriction — that seems to
embolden some to cross the line."
The issue is closely watched by a
cadre of attorneys and former IRS officials who specialize in
tax-exempt law, along with watchdog groups on competing sides of the
church-state debate.
Americans United for Separation of Church and
State, which seeks strict limits on religious involvement in politics,
and the Alliance Defending Freedom, which considers the regulations
unconstitutional government intrusion, scour the political landscape for
any potential cases.
While Americans United gathers evidence it hopes
will prompt an IRS investigation, the Alliance Defending Freedom jumps
in to provide a defense.
Neither group knows of any IRS contact with
houses of worship over political activity since the 2009 federal ruling.
Nicholas
Cafardi, a Duquesne University Law School professor and Roman Catholic
canon lawyer who specializes in tax-exempt law, said he has heard of no
IRS inquiries over churches and politics in the last three years.
Neither has Marcus Owens, a Washington attorney who spent a decade as
head of the IRS tax-exempt division and is now in private practice.
Owens,
who was with the IRS through 2000, said the agency had once initiated
between 20 and 30 inquiries each year concerning political activity by
churches or pastors.
He said he knows of only two recent cases the IRS
pursued against houses of worship or pastors, and neither involved
complaints over partisan activity.
"What the IRS is desperate to
do is to avoid signaling to churches and pastors that there is no
administrative oversight," Owens said. "The IRS has been vigilant with
regard to civil fraud and criminal cases, but those aren't all that
common."
The tax code allows a wide range of political activity by
houses of worship, including speaking out on social issues and
organizing congregants to vote. But churches cannot endorse a candidate
or engage in partisan advocacy.
The presidential election has seen a
series of statements by clergy that critics say amount to political
endorsements. Religious leaders say they are speaking about public
policies, not candidates, and have every right to do so.
The Billy
Graham Evangelistic Association has recently taken out full-page ads in
major newspapers, featuring a photo of renowned evangelist Billy
Graham, urging Americans to vote along biblical principles.
Graham met
last month with Mitt Romney and pledged to do "all I can" to help the
Republican presidential nominee.
In a survey last week by the Pew
Forum on Religion and Public Life, 40 percent of black Protestants who
attend worship services regularly said their clergy have discussed a
specific candidate in church — and the candidate in every instance was
President Barack Obama.
This Sunday, Roman Catholic Bishop Daniel
Jenky of Peoria, Ill., ordered all the priests in his diocese to read a
statement urging Catholics to vote and stating that, "Catholic
politicians, bureaucrats, and their electoral supporters who callously
enable the destruction of innocent human life in the womb also thereby
reject Jesus as their Lord."
In Texas, a pastor of a small
independent church posted a sign on the front of the building that read,
"Vote for the Mormon, not the Muslim." Romney is the first Mormon
nominee for president by a major party. Opponents of Obama, who is
Christian, have spread false rumors that he is Muslim.
Renwicks
made his comments Oct. 18, at a Washington seminar on tax-exempt
organizations presented by the American Law Institute-Continuing Legal
Education.
Responding to a moderator's question about the status of
church audits, Renwicks said, "we're basically holding any potential
church audits — they're basically in abeyance.
"I haven't done a
church audit in quite some time," said Renwicks, according to a
recording of the talk provided by the American Law Institute. "There
were one or two — what I'd call somewhat, maybe potentially egregious
cases — where I thought maybe, we need to go out there, but even those
were put in abeyance until we get the signature issue resolved."
An
IRS reorganization in 1998 put responsibility for authorizing the
audits in the hands of lower-ranking IRS officials.
A Minnesota pastor,
who faced an audit over his 2007 endorsement from the pulpit of Rep.
Michele Bachmann, argued the IRS was violating its own rules.
In 2009, a
federal judge agreed, prompting a formal IRS rule-making process that
continues today.
Dean Zerbe, a former senior counsel to the Senate
Finance Committee who specializes in tax fraud and abuse, said the
audits are "an extremely hellish area for the IRS to deal with."
The
agency has to balance enforcement with churches' First Amendment
rights. Even when the federal agency finds an outright violation, the
penalty for houses of worship is usually little more than a warning.
The
IRS has revoked nonprofit status in just a handful of these cases since
the rules for religious groups were adopted in 1954.
Last month,
more than 1,500 pastors, organized by the Alliance Defending Freedom,
endorsed a candidate from the pulpit and then sent a record of their
statement to the IRS, hoping their challenge would eventually end up in
court.
The Alliance has organized the event, called "Pulpit Freedom
Sunday," since 2008. The IRS has never contacted a pastor involved in
the protest.
"I think people are misled to think the IRS wakes up
every morning wanting to knock on the door of a church or synagogue,"
said Zerbe. "Most senators blanch at the idea of having an IRS agent in
the pews listening to what's going on from the pulpit. ... I think the
IRS in some ways reflects that similar discomfort."