Berkley Center

Yesterday, the Alliance Defense Fund staged its highly anticipated and controversial "Pulpit Freedom Sunday." Last night, I spoke by phone with three figures who have actively challenged or questioned the ADF's initiative. All agreed the stunt was a massive violation of federal tax law that should result in IRS sanctions.

According to the ADF's site, 33 pastors in 22 states were expected to preach "about the moral qualifications of candidates seeking political office. The pastors will exercise their First Amendment right to preach on the subject, despite federal tax regulations that prohibit intervening or participating in a political campaign."

Put differently, the pastors were threatening to break the law (and by all accounts they did!). The federal tax regulations which the ADF intended to violate are found in the Internal Revenue Service's 501(c) (3) section which prohibits charitable organizations from, among other things, endorsing political candidates. None of this seems to worry the ADF and its many lawyers. In fact, they are actually hoping to get a rise out of the IRS--all the better to get this party started in the United States Supreme Court.

The first person I spoke to about this is Eric Williams senior pastor of North Congregational United Church of Christ in Columbus Ohio. Pastor Williams has expressed concerns over the ADF's plan and even called on UCC pastors to preach counter-sermons in support of separation of Church and State. He also asked the IRS to revoke the charitable status of the ADF and enjoin it from continuing to solicit churches to knowingly violate charities law.

The second is the lawyer Marcus Owens. Mr. Owens brings unique expertise to bear on this problem since he was employed by the Exempt Organizations Division of the Internal Revenue Service (he also served as its director for ten years). On Sept. 9, Owens wrote a letter to the IRS's Office of Professional Responsibility raising concerns about the Alliance Defense Fund's proposed actions.

Finally, I was fortunate to solicit an important comment (see below) from another lawyer, Mr. Cono Namorato who formerly worked for the IRS as Director of the Office of Professional Responsibility (the very office to which Mr. Owens protested). His experience might shed light on how the current holder of that position may respond to the Pulpit Freedom Sunday.

JACQUES BERLINERBLAU: Pastor Williams, so what actually happened yesterday on Pulpit Freedom Sunday?

ERIC WILLIAMS: I am assuming that 30 or more Christian ministers were systematically counseled by lawyers at the ADF to intentionally violate federal law by preaching a sermon either opposing or endorsing a candidate running for political office.

Do we have any proof of such activities as of today?

WILLIAMS: The only proof I have is what I have been reading in print and hearing on the radio. I was in an interview with a minister who announced that he would indeed endorse one of the candidates. His name was Gus Booth and he's from Warroad Minnesota.

Indeed, one of the curious things about the ADF is that it wants to publicize its lawbreaking. It is goading the IRS "to make its day." What do you make of that?

WILLIAMS: It troubles me. In my mind it diminishes the integrity and the role of religious leaders and religious communities alike. I've heard the ADF's argument, but it doesn't make sense to me. It's not a matter of free speech - it's a matter political speech at the expense of the American tax payer.

What do you think lies behind this?

WILLIAMS: I have a growing suspicion that what lies behind the pulpit initiative is not a desire to assure free speech. Because I don't think free speech is jeopardized. I worry that these churches are trying to gain political power. The goal is to secure increased political power by either aligning the church with a candidate or political party, or by gaining influence on that candidate's or party's platform through promised voter turn out.

Seeking either possibility through the pulpit certainly entangles the church--through electoral politics--with government. Entanglement serves only one goal: to advance laws and policies that impose sectarian religious values into public life. Whenever this happens, all of us lose our democratic freedoms.

Turning to you counselor, in what particular ways do the ADF's actions violate the law?

MARCUS OWENS: There are two issues at play here. One is the action of the ADF itself in orchestrating a mass violation of federal tax law. There is a set of ethical rules that applies to all professionals who practice federal tax law or who advise taxpayers as to what federal tax laws require. Those rules are designed to regulate the behavior of the tax professionals to ensure the integrity of the voluntary tax system and are backed up with sanctions. They are enforced by a part of the IRS called the Office of Professional Responsibility. What the rules clearly and unequivocally proscribe is counseling taxpayers on how to violate the tax law.

There is another issue as well. One of the requirements for federal tax exemption is that the charity or church in question not engage in political campaign activity. In addition to potential loss of tax-exempt status triggered by such intervention, there is an excise tax that applies to the amount involved in the political campaign intervention. It would be 10% of the amount a church spent on the activities constituting the intervention. So if the pastor spent his entire service on this act of intervention, and the intervention was described on the church website or in the church bulletin the church would have to pay 10% of those costs.

Of course, the loss of tax-exempt status, even for a limited period of time, is much more significant and symbolic.

What could happen to the ADF lawyers sponsoring this initiative
?

OWENS: A variety of penalties might apply to lawyers who are involved in assisting in, or aiding and abetting, the violation of tax law, as would be the case in helping to draft a sermon that endorsed or opposed specific candidates. The possible sanctions include warning letters, fines, and even a suspension or permanent bar from practicing tax law. The Office of Professional Responsibility, when it does take action against a lawyer or accountant, forwards the information about the action to the state bar or state CPA society, with further potential repercussions.

In fact, Mr. Cono Namorato who actually once directed the Office of Professional Responsibility has told me that "any covered practitioner (attorney, CPA or enrolled agent ) who counseled someone to break the law would be, in my opinion, subject to a sanction of suspension or disbarment." Going a bit further, what is the responsibility of the Justice Department and the IRS in all of this?

OWENS: The responsibility of the IRS is to make sure that charities and churches don't engage in political campaign activity.Second, the IRS is charged with enforcing the ethical rules that apply to practitioners. The role of the Department of Justice is to represent the IRS in court, if necessary, when it takes steps to enforce those particular provisions, or if the IRS decides to seek an injunction as it has done in other situations involving tax protesters.

In your opinion, are the IRS and Justice Department following proper procedures?

OWENS: No one knows how they are doing up to now, because of the privacy rules in the Internal Revenue Code that prevent the IRS from disclosing any information about enforcement actions. The only time in which information would be made public would be if the IRS barred or suspended an attorney from the practice of tax law or if the IRS revoked the tax exempt status of a church. The revocation action would be made public to warn potential donors that their contributions will not be deductible.

So in light of these privacy rules, how does Jane Q. Citizen know if the IRS is taking the ADF's actions seriously?

OWENS: The IRS has confirmed that it has received the complaints and is evaluating them. In view of the facts that the complaints included specific documentation of the ethical violations, and the political campaign intervention will be publicized, the likelihood of IRS action is high. It is possible that the ADF, or one or more of the churches involved in the project, could release a public statement if IRS action occurs. I should also add that Sen. Charles Grassley (R - IA), the ranking member of the Senate Finance Committee, has been pushing the IRS to crack down on attorneys and other practitioners who counsel violation or abuse of the tax laws. The Department of Justice, under Attorney General Mukassey and his predecessors, has obtained injunctions against such improper and unethical behavior.

Coming back to you, Pastor Williams, why should religious Americans be concerned about this?

WILLIAMS: To tear down the historic wall of separation of church and state is to seek to erode individual liberties of conscience and religion--our unalienable rights guaranteed by our nation's founding documents.

What do you expect will happen next?

WILLIAMS: I expect that the story will have profile in the media. I don't know that a court will, in fact, take up the argument. But the ADF has clearly articulated its aspiration. The hope is that recent appointments to the Supreme Court will result in an overturn of the 1954 Statute.

Do you think this is going to go to United States Supreme Court?

WILLIAMS: It is my hope that, on the contrary, the IRS will find the ADF counsel guilty of ethics violations and deliver appropriate sanctions. It is my hope that the IRS will revoke the charitable status of the ADF on the grounds that promoting tax abuse by churches has never, throughout the history of this nation, been considered a charitable activity.

And I hope that the churches will be sanctioned in a way that discourages candidate endorsement from the pulpit by members of all clergy in future election cycles. It will be deeply disturbing to me, and troubling for the democracy, if facts generated in this case produce a pattern that is permitted to rise in profile for consideration by the Supreme Court. History and legal precedent is not on the side of the Alliance Defense Fund or their participating churches. But any number of events have taken place in recent years - even within the past week - that defy historic precedent.