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Nicholas P. CafardiJuly 30, 2012

During a sermon in the cathedral church of St. Mary’s in Peoria, Ill., on April 14, Bishop Daniel Jenky compared what he called the “extreme secularist agenda” of President Obama with the anti-Catholic programs of, among others, Hitler and Stalin, two of the 20th century’s worst mass murderers. In the same month, Archbishop J. Peter Sartain of Seattle, Wash., launched a signature drive in every parish of his archdiocese to put Referendum 74 on the statewide ballot. The referendum would repeal Washing-ton’s new same-sex marriage law.

What Bishop Jenky did is called “electioneering.” He intervened in a political campaign in opposition to one of the candidates. What Archbishop Sartain did is called “lobbying.” He intervened in an attempt to pass legislation. Both men did so using their episcopal office. Bishop Jenky spoke from the pulpit of his cathedral during Mass. Archbishop Sartain sent his Referendum 74 letter out on archdiocesan stationery. There is no doubt that both men were acting in their official capacities on behalf of the church and not as Citizen Jenky and Citizen Sartain.

Why does that make a difference? Quite simply because tax-exempt churches—on whose behalf Bishop Jenky and Archbishop Sartain were acting—are under serious legal restrictions when it comes to electioneering and lobbying activities. Churches cannot electioneer at all. The prohibition is absolute. They may not intervene in any way in a campaign for political office either in favor of a candidate or in opposition to one. With lobbying, an attempt to influence legislation, there is some wiggle room. There the law allows churches to lobby, but only to an “insubstantial” degree.

A Privilege, Not a Right

What law is this? It is one that every American is familiar with—the Internal Revenue Code. Section 501(c)(3) of the tax code, the same section that grants churches and other nonprofit charitable organizations their exemption from having to pay federal income taxes, says that as a condition of being tax exempt, organizations like churches may not electioneer or lobby (except insubstantially).

The restrictions of Section 501(c)(3) have survived constitutional challenge in numerous instances because exemption from taxation is a government-granted privilege, not a right, and as such the government is free to put legitimate conditions on it. The U.S. Court of Appeals for the 10th Circuit said it best in Christian Echoes National Ministry Inc. v. United States (1972), a case initiated by a religious organization that claimed the tax code’s electioneering restrictions violated its First Amendment free-speech rights:

In light of the fact that tax exemption is a privilege, a matter of grace rather than right, we hold that the limitations contained in Section 501(c)(3) withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech. The taxpayer may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative, the taxpayer may refrain from such activities and obtain the privilege of exemption.

Exemption from federal income taxes is a form of taxpayer subsidy. The church gets to keep the money it would otherwise have to pay the federal government as income taxes in order to use that money for religious and charitable purposes instead. But those forgone federal revenues must be made up by the taxes that the rest of us do pay. There is even more to the subsidy. Churches, like most other Section 501(c)(3) charitable organizations, can also attract tax-deductible gifts under Section 170 of the Internal Revenue Code. Individual taxpayers can take a deduction on federal income taxes for the gifts they give their churches. In effect, they are paying less tax so that the church can more easily raise funds. This means that churches actually receive a double taxpayer subsidy—by not having to pay their own federal income taxes and by receiving gifts that are deductible on the donor’s federal income taxes.

When Congress adopted the limitations on political activities in Section 501(c)(3), it was simply saying that it did not want taxpayer-subsidized charitable dollars being used for political purposes, which is a rather reasonable restriction. Who among us thinks that politics accomplishes any charitable purpose? The estimable federal judge Learned Hand said it best, “Controversies of the [political] sort must be conducted without public subvention. The Treasury stands apart from them.” Exactly. Our tax dollars should not be used to subsidize partisan political activities of tax exempt organizations.

At the same time, by limiting the political influence of tax-exempt churches, Congress was also honoring one of the basic tenets of our nation’s founding, namely the separation of church and state. Allowing churches to use tax-subsidized dollars for political activities would link church and state in a way that the founders feared. They knew that a mix of religion and politics would be fatal to our nascent republic. In his “Memorial and Remonstrance Against Religious Assessments,” James Madison, the author of the First Amendment, which created free exercise rights, said, “[Clergy] have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people.” He also pointed out in the Federalist Papers, No. 10, that “a zeal for different opinions concerning religion, concerning government and many other points...have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good.”

Crossing the Line

Bishop Jenky’s odious comparison and Archbishop Sartain’s support for an initiative to repeal the civil rights of a significant sector of our fellow citizens do seem disposed “to vex and oppress,” to use Madison’s words. Bishop Jenky’s electioneering is a clear violation of the tax code. There is a campaign for president going on this year, and Bishop Jenky attacked one of the candidates from his cathedral pulpit. The question of Archbishop Sartain’s lobbying is less clear.

Churches can certainly advocate on social issues they perceive to have a moral component without violating the tax code. But once a church’s advocacy goes beyond issues and, without a legitimizing invitation from the legislature itself, addresses a pending law—urging voters directly (called grassroots lobbying) or urging legislators to act (called direct lobbying)—a line has been crossed. Advocacy for or against pending laws and referendums is lobbying, pure and simple, and tax-exempt churches may not use tax-exempt dollars to affect the legislative process, except “insubstantially.”

There is the rub for Archbishop Sartain. Depending upon how many church resources he is using (staff time, church publications, advertisements and so on, backed by tax-exempt church dollars) to get Referendum 74 on the statewide ballot, what he is doing may or may not be considered “substantial” lobbying. Using even one tax-exempt church dollar, though, to stir up opposition to the legally recognized civil rights of others is objectionable, no matter what the tax code says about it.

A practical problem with our bishops’ violating the tax code’s restrictions on political activities is that the Internal Revenue Service has only limited means to stop them. The I.R.S. can either use the nuclear option and revoke the archdiocese’s tax exemption, which is so drastic as to be unthinkable, or it can use the fly-swatter option and fine the diocese for the amount it spent on the prohibited political activity under Section 4955 of the tax code. For example, what was the cost to the Diocese of Peoria of Bishop Jenky’s political homily? The cost of opening up the cathedral that day? The utility costs? A prorated portion of the bishop’s salary? We are talking about a small amount, hardly the kind of fine that hurts. So legal penalties do not work in such cases. Most Americans might think the simple fact that this is the law would restrain politically overzealous bishops, but that has not worked either.

Millennial Malaise

What might work? How about the bishops’ own self-interest? On any given Sunday in the United States, fewer than three out of 10 Catholics are in church, and the Catholics who are not there are mostly young. In a survey conducted among 16- to 29-year-olds by the Barna Group in 2007, nine of this age cohort’s top 12 perceptions of Christianity were not good ones. They found Christianity to be judgmental (87 percent), hypocritical (85 percent) and too involved in politics (75 percent). That is some troika.

In another 2012 survey of college-age millennials (18- to 24-year-olds) conducted by the Public Religion Research Institute and Georgetown University’s Berkley Center for Religion, Peace and World Affairs, it was found that 64 percent think that “anti-gay” is an accurate description of Christianity today. An almost equal portion in this survey, 62 percent, also find modern Christianity to be “judgmental.” Now some readers might opine that religion is supposed to be judgmental; it is supposed to distinguish right from wrong and that these surveys reveal only that young people prefer the relativism of their own generation to the church’s rules. Maybe. But perhaps we should also recall that we worship a Lord who said, “Do not judge, so that you may not be judged” (Mt 7:1).

In 2008, during the last presidential election, the Pew Research Center conducted a study on church endorsement of candidates for political office. The results are revealing. When asked if churches should endorse one candidate over another, the Pew poll found that in the total population of those polled, 29 percent said yes, but 66 percent said no. When the breakdown was by faiths, among all Catholics, 30 percent said yes and 67 percent said no. Among white, non-Hispanic Catholics, 26 percent said yes and 70 percent said no. Those are rather overwhelming numbers, indicating that bishops who intervene in politics are working against their own interests. Their people are not going to hear them.

If the bishops’ politics are keeping people, especially young people, out of the pews, then perhaps they need to ask themselves a critical question: What is more important to them, political goals or the salvation of souls? If our bishops choose to ignore the law’s restrictions on their political activity, they should at least listen to the Lord, who talked about leaving the 99 sheep to go find the lost one (Lk 15:5). In the final analysis, our bishops will not be judged on how many presidents they helped to elect or how many laws they helped to pass, but on how many of those lost sheep they rescued.

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Leonard Villa
10 years 6 months ago
This only seems to come up when so-called liberal interests (abortion, gay marriage, Obama agenda) are threatened and usually the threat about losing exempt status is directed against Catholics. This never comes up vis a vis African-American congregations when Shaprton, Jackson et al are promoting their legislative/political agenda in the pulpit. Michelle Obama was recently in the pulpit. This never came up when the churches were involved with ant-war and the civil rights struggles. There was no hand-wringing about the IRS. I doubt if every tax lawyer would agree with Professor Cafardi analysis of the bishops in question.
David Bruning
10 years 6 months ago
In 1967, Bishop Donovan of Toledo urged Catholics in the city to vote in favor of an Open Housing Ordinance. He received criticism from some people, but I do not remember the tax exempt status of the diocese being challenged. That is one reason I see a sharp distinction between what Bishop Jenky did in Peoria and what Archbishop Sartain did in Seattle. There is a big difference between endorsement or non-endorsement of a candidate and urging passage or rejection of legislation on moral grounds. The regulations we receive from our diocese make those distinctions. Otherwise, the Church and other tax exempt religious organizations would be hog-tied in their mission to speak tomoral concerns.
10 years 6 months ago
Remove their tax examption. Maybe that's the only way we can wake them up. My chagrin at the bishops is turning into hatred and contempt. At first I thought they were following their lights and doing the best they could but now I am convinced they are vincibly ignorant. 
C Walter Mattingly
10 years 6 months ago
I'm trying to get some clarity on this issue. Is Professor Cafardi saying that Bishop Jenky, because he is within a tax exempt institution, cannot call attention to such actions by the President as his determined opposition to vouchers for those inner city poor who, statistics demonstrate, would greatly benefit from them, an opposition which deprives the church not only of an opportunity to extend its carism to the poor but also of revenue with which to do so? Can he not call attention to the recent mandate that is forcing the church to act against its long-held moral values in its institutions? Likewise the president's proposals to limit deductibility of charitable contributions to reduce the financial ability of the church to function? Can't he point out these and other actions which collectively function to restrict and even thwart the church in its very operation without violating a tax exempt status?
If the bishop said because of these actions taken by the president against the church, I urge you to vote against President Obama and/or for his opponent, that would clearly be electioneering. But to complain about these actions taken by the president, to which both liberals and conservatives have taken umbrage, seems an exercise of free speech rather than explicit electioneering. But I don't know the exact legal definition of "electioneering." 
Dan Hannula
10 years 6 months ago
The legal issue is one thing and was expressed clearly and, as far as I understand, correctly.  

However, there are two other things that also strike me when I hear of these ever increasing attempts by Bishops to throw their weight around politically. Have they really understood and appreciated all the "ethical" issues in such political power plays?  I suspect not. It is quite intoxicating to experience political influence. And, I'm sorry if this  sounds caustic, but did they really get such a meager education in political philosphy in seminary? I suspect so. But, sooner or later, they will understand John F. Kennedy's famous quote-"In the past, those who foolishly sought power by riding on the back of the tiger ended up inside." 
Gary Nicolosi
10 years 6 months ago
As an attorney, I agree with Professor Carfardi that at least one of the bishops has come dangerously close to crossing the line, for purposes of tax exemption. I recall back in 2004, Father George Regas from All Saints Episcopal Church in Pasadena, California preached a sermon the Sunday before the election that got him and the church in trouble with the IRS. There seemed to be in his sermon an implicit endorsement of John Kerry and strong criticism of George Bush. The IRS pursued the matter but eventually dropped the case. At the time, liberals claimed the IRS action was an attempt to intimidate the church from speaking on social issues. 
So when does a prophetic word about social issues constitute political action or speech? Should the church be muzzled in order to keep its tax exemption? And how does one distinguish between "spiritual" and "social issues" when churches are called to proclaim a "whole" gospel for the whole world?
Perhaps the Catholic Church needs to bite the bullet and renounce its tax exemption so that it can have the freedom to proclaim the gospel and put that gospel into practice through prophetic ministry. Justice William Douglas thought that a good idea  and so do I. 
Janelle Lazzo
10 years 6 months ago
The Archbishop of Kansas City in Kansas, Joseph Naumann, lost no opportunity to malign in person and in print the then governor of Kansas, Kathleen Sebelius.   Now that she is Secretary of Health and Human Services, totally dedicated to the common good of the people of America, he and his right wing followers have not let up.  What they seem to want is for everyone in America to follow the rules of the Catholic Church, no matter how outdated or inappropriate for the general public.  The idea is to designate those rules as "teachings", when actually they are policies, wholly implemented and kept in place by men who have promised celibacy, but within whose ranks have been perpetrated some of the most heinous sexual crimes.  A lot of Catholics, especially those who trust the magisterium to provide honest leadership, but even those who are uneasy at the state of affairs, are opting for the past of least resistance, complete passivity.  In the recent Fortnight for Freedom debacle, the Archbishop led his minions to the state capital of Kansas, Topeka, where in disturbingly large numbers they clapped at statements like, "Kathleen Sebelius should be excommunicated,"   This disgraceful situation in Kansas, a blood red state, is exascerbated by its governor, an Opus Dei Catholic, whose programs concentrate heavily on lowering taxes, no matter how debilitating the impact of that already on the poor, mentally ill, and marginalized in the state.   The governor's most ardent followers, who label themselves pro-life, are in reality only pro-birth.  They are not much interested in sustaining the quality of life or even life itself much beyond the womb, if it will cost the taxpayer.  And it could get worse. Legislative elections are coming soon and the state has been redistricted to make it entirely possible that the majority will be held by the most reactionary right-wing politicians.  It is a sad time for Catholic progressives and moderates who love their state but are more and more critical of its politics, and distrustful of the leadership of its Catholic archbishop.
C Walter Mattingly
10 years 6 months ago
Gary (#9),
Thanks for your opinion as an attorney, that the bishop's statement came "dangerously close" to constituting "electioneering." But it's still not clear to me what constitutes stepping over that line, as Prof. Cardiff claims occurred here. For example, it is clear that the church is against exterminating the innocent unborn in abortion as well as executing those adjudicated guilty of capital crimes. These are hot-button political issues. Is reasserting one or both of these moral positions of the church during an election, when one or both candidates may take a contrary position, electioneering? That could be considered intervening in an election simply by reaffirming the church's belief in the issue. Similarly, stating the church's position in favor of extending amnesty to illegal immigrants could be considered intervening in the election on behalf of one candidate and against the other. Does calling attention to a candidate who is in opposition to such positions constitute electioneering? Or does it require the bishop to say vote for one candidate, or not for the other, to come out with an explicit endorsement rather than point out the discrepancy or voice a criticism? 

Jim McCrea
10 years 6 months ago

The last time I looked, the salvation of my soul is not dependent on any bishop (or church, for that matter) but, rather on my faith in and receipt of the gratuitous grace of Jesus Christ.


To believe otherwise is idolatrous.

C Walter Mattingly
10 years 6 months ago
Professor Cafardi summarizes a survey of young adults as follows: "They found Christianity to be judgmental (87 percent), hypocritical (85 percent), and too involved in politics (75 percent)." These are acute observations and indicate that these young people may be more attuned to the founding of the Church than might be expected.

Judgmental. As Professor Cafardi, concedes, this is certainly a characteristic of the church founded by Jesus. This is the moment to which Christians turn, the great and defining moment of their existence, the summation of their lives: the Last Judgment. And these students got it right. Their lives will be judged at one moment and determine their eternal life.

"Hypocritcal," the next highest category. No doubt about this. With the notable exception of our public school system, the church has been one of the largest examples of sexual abuse in the US outside the family, with a tragically slow and ineffective response to the problem to boot. And one of Christ's phrases of address most memorable to those familiar with the NT is "O, ye hypocrites!" Yet Jesus adddressed what He knew would be a constantly reoccuring problem in the Church in a profound way. No act of hypocrisy could ever surpass that of Peter, whom Jesus knew would not only abandon Him at His moment of trial, but would even deny that he knew who He was. HIs response? He founded His church on this rock of hypocrisy.
The bottom line is that the church at its founding was hypocritical, has since been hypocritical, and in the future will be hypocritical. It will consistently come up short on practicing what it preaches.
This reality is known as Sin. And the answer is not to edit that word out of the church's vocabulary, but to acknowledge and deal with it. Peter, hypocrite, warts, and all, the first pope. Yet as Peter repented and reformed, did better, so can we. But the pressure is on the church to do better. Then, now, and tomorrow.
"Too involved in politics." Definitely. That's what the Romans apparently concluded of Jesus. When you believe in moral absolutes such as the sanctity of human life, you are going to experience conflict in the political life in which you find yourself immersed. And Jesus was often very clear. For example, nothing is much clearer than His definition of marriage as a permanent bond existing between one man and one woman. His opposition to divorce, for instance, cost Him many followers, we are told, then even as it does the church now. These are harsh words to many who wish to have same-sex marriages and a smaller number (primarily male) who wish to have three or more wives, who also wish that arrangement. In other words, to reshape marriage as they would have it. But the church has chosen not to contravene the words of Christ, who is after all their head. And because Christians attempt to folow rather than contravene Jesus's express words, they are castigated and are called by some homophobic haters. Whew! 
In short, the young people surveyed are correct. So is Professor Cafardi when he exclaims, "What a trioka!" It's a tough path the church has to follow as it stumbles along. The church is judgemental, yet provides their members with a rich history of paths to lead to that Final Judgment which if followed will crown their existence. The church has and will be found hypocritical and wanting in other ways, but Jesus showed us. in founding His Church on a great hypocrite, that it can always repair and reaffirm itself after the reoccuring failures then and now. The church, pursuing its values in the larger world, will come into conflict with political authorities, be too political in practicing its faith.
And the answer, hopefully, will be, "Viva Cristo Rey!" 

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