Pastors, Politics and the Wink-Wink Rule

charles c. haynes Commentary
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Pastor Wiley Drake got the all-clear from the Internal Revenue Service last month — and that means his congregation at the First Southern Baptist Church in Buena Park, Calif., will keep its tax-exempt status.

The pastor’s IRS problem began last summer when he used the church’s letterhead and his Internet radio show to announce his support for then-Republican presidential candidate Mike Huckabee. Americans United for Separation of Church and State demanded an IRS investigation — and the Alliance Defense Fund, a Christian legal group, rushed to Drake’s defense.

In a May 12 letter, the IRS ruled that Drake acted as an individual and not as a representative of the church when he endorsed Huckabee.

Drake’s run-in with the IRS is just the latest round in the long-running fight over tax-code regulations prohibiting nonprofits, including houses of worship, from endorsing candidates or political parties. In the 2004 election cycle some 60 religious groups were investigated — and that number is expected to be higher this time around.

Cut through the gobbledygook of IRS regulations and the bottom line is this: Preachers are free to use the pulpit to speak out on public-policy issues — but are required to stop short of endorsing particular candidates or parties in church publications or at official functions.

As individuals, however, religious leaders may get involved in campaigns and endorse candidates. According to the IRS, Drake’s endorsement of Huckabee was personal, not institutional.

In this year of the Political Pastor, IRS line-drawing on this question seems like a confused attempt to make a distinction without a difference. Wiley Drake, Jeremiah Wright, John Hagee, Ron Parsley, Michael Pfleger and many other pastors have made it perfectly clear this election season how they want the faithful to vote — even as they claim to speak as “individuals” and not for their church.

Let’s call it the wink-wink rule: “In my sermon this morning, I’m not going to tell you how to vote — but, wink-wink, his initials are John McCain/Barack Obama.”

The Alliance Defense Fund argues that the IRS rules should be modified to lift restrictions on what can be said from the pulpit. This Sept. 28 — just weeks before the presidential election — ADF is promoting “Pulpit Freedom Sunday” to encourage pastors to “openly discuss the positions of political candidates.” If complaints are filed, ADF may get a test case to challenge the constitutionality of the IRS regulation.

Advocates on both sides invoke the First Amendment to make the case for and against the IRS rule prohibiting political endorsements from the pulpit.

On one side, some proponents of strict church-state separation warn that partisan preaching from the pulpit undermines the establishment clause. And on the other side, many Christian conservatives argue that restricting pulpit sermons is a denial of freedom of speech and religion.

It isn’t clear to me, however, why banning partisan politics from the pulpit is required by the First Amendment. The establishment clause, after all, limits government — not religious groups. In fact, it could be argued that government monitoring of what is preached in houses of worship is a greater threat to religious freedom, including the separation of church and state, than pastors endorsing politicians or parties.

Whether church (or mosque or synagogue) involvement in partisan politics is good for religion or society is an important issue — one for congregations themselves to debate — but it isn’t an establishment-clause question. The First Amendment, after all, fully protects the right of religious organizations to participate in politics.

But it’s also debatable to what degree this is a “free speech” issue. Tax exemption is a government benefit with strings attached. All charitable groups recognized under Section 501(c)(3) of the Internal Revenue Code are subject to a ban on electioneering activities. If churches don’t want restrictions, they can forgo exemptions.

It strikes me, at least, as good public policy to require that charities, including religious groups, refrain from partisan politics in exchange for a tax benefit designed to serve the common good.

At the same time, however, it may be time to jettison the wink-wink rule and let pastors say what they want from the pulpit, as long as they speak for themselves and not the church. The current regulation on pulpit speech is at best murky — and at worse unenforceable and intimidating.

Given the choice, I’ll take partisan politics from the pulpit over speech police in the pews.

Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected].