Before us, now, is a series of possible violations of the law against partisan political activity by non-profit organizations–specifically by religious institutions allegedly supporting Barack Obama’s candidacy for president. Besides the official IRS inquiry into Obama’s appearance at the United Church of Christ convention last year, there are assertions that a pastor in Las Vegas and Obama’s longtime pastor, Jeremiah Wright, endorsed him at least indirectly from the pulpit. (These are reviewed by Mark Stricherz in GetReligion. For the latest on Obama and Wright, see here.) Under the circumstances, it seems like it might be worth a quick review of how IRS enforcement policy has gotten to this point. And to that end, I called up Marc Stern, church-state guru for the American Jewish Congress, for a briefing. Here, briefly, is what Marc had to say:

Until the 1990s, the IRS largely avoided strict enforcement of the 1954 law banning political activity by non-profits on penalty of losing their tax exemption. Only if the violation was egregious–which is to say, very public–did it bring the hammer down. Such a case was brought against Christian Echoes National Ministry, run by the anti-communist Billy James Hargis, decided by the 10th Circuit Court of Appeals in 1972. Here, from the decision, is an account of what Christian Echoes had been up to:

In addition to influencing legislation, Christian Echoes intervened in political campaigns. Generally it did not formally endorse specific candidates for office but used its publications and broadcasts to attack candidates and incumbents who were considered too liberal. It attacked President Kennedy in 1961 and urged its followers to elect conservatives like Senator Strom Thurmond and Congressmen Bruce Alger and Page Belcher. It urged followers to defeat Senator Fulbright and attacked President Johnson and Senator Hubert Humphrey. The annual convention endorsed Senator Barry Goldwater. These attempts to elect or defeat certain political leaders reflected Christian Echoes’ objective to change the composition of the federal government. (United States Court of Appeals,Tenth Circuit. CHRISTIAN ECHOES NATIONAL MINISTRY, INC., Plaintiff-Appellee, v.UNITED STATES of America, Defendant-Appellant. No. 72-1308.)

By and large, however, the IRS did what it could to avoid bringing cases–even though this meant overlooking some pretty clear violations. There wasn’t much tax revenue to be obtained by revocation of the exemption, and the cases inevitably brought a heap of unwelcome publicity.
That situation changed in the mid-1990s, when Americans United for Separation of Church and State decided to begin making complaints to the IRS about violations of the law by churches and other religious bodies. For this, AU was roundly criticized by a wide spectrum of religious groups, who feared that it would open a can of worms, which to a degree it has. AU was largely focused on complaining about conservative religious politicking, but in the interests of even-handedness also pointed its finger at a black church or two on the other side of the ideological spectrum. And because the IRS for the most part depends on complaints in order to undertake investigations, it began investigating. “I think it was a huge error,” said Stern. “They’ve unleashed this weapon. It’s like Stalin encouraging students to snitch on their parents.”
Over the past couple of election cycles, the IRS has gone to some pains to make clear what the rules are. And the investigatory process has been, in Stern’s view, non-partisan and evenhanded. But because the system relies on complaints, there’s a lot of faith-based political activity that slips by. And some of what is getting investigated is pretty small potatoes.
My own view is that the odd near-endorsement from the pulpit matters a good deal less than the kind of systematic organizing of conservative white churches carried out, for example, by the GOP in Georgia in recent years. Part of the problem, however, is that it seems to be a lot easier to provoke an IRS investigation with an audio- or videotape of a pastoral pronouncement than to come up with a smoking gun in the matter of church-based mobilization. Complicating the situation further is that you used to be able to draw a pretty clear distinction between stuff that took place inside a congregation and what was meant for public consumption. Thus, in the 2000 Branch Ministries case, the D.C. Circuit Court of Appeals upheld the loss of tax exemption of a church in New York State that had taken out full-page newspaper ads opposing the election of Bill Clinton in 1992. Nowadays, however, what happens inside a church often doesn’t stay inside a church–on purpose. Sermons of prominent pastors like Jeremiah Wright are videotaped and distributed on the internet. They are, in a word, published for all to see.
Congress could solve the whole mess simply by lifting the ban on politicking by non-profits. And it’s a reasonable bet that the effect on national politics would be minimal. The effect on our religious institutions, however, might be more substantial–and not for the good.