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voter guides
``` [From Paula Xanthopoulou at CC Watch.]
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Date: Sun, 13 Oct 1996 15:11:48 -0400 From: Watch97@aol.com Subject: 1-URGENT Information For Churches About Voter Guides
This is a Public Service Announcement--
NOTE: Americans United for Separation of Church and State is now distributing two memos regarding the kind of voter guides that can be distributed by churches. One is included here. The longer version can be accessed by sending e-mail to an auto-responder (publicse-info@igc.org) or visiting AU's website (http://www.netplexgroup.com/americansunited/). The documents have already been distributed by e-mail to over 6,000 pastors and church leaders/activists via e-mail. Anything that you can do to forward this material or otherwise distribute this information to churches in your area would help insure that those churches know what they are getting into when they agree to distribute Christian Coalition Voter Guides.
It should be stressed that NO ONE IS TELLING CHURCHES THAT THEIR MEMBERS HAVE NO RIGHT OR OBLIGATION TO BE INVOLVED IN THE POLITICAL PROCESS, OR THAT CHURCHES SHOULD NOT DISTRIBUTE VOTER EDUCATION MATERIALS. The issue is that there are rules for what a 501(c)(3) organization can distribute and, specifically, what they can be based upon. The rules are different for 501(c)(4) groups--which is what the Christian Coalition purports to be. The recent lawsuit brought by the FEC against the Christian claims that in the past that organization did not even follow those rules--that their voter guides were indeed partisan. Recently, the Christian Coalition distributed a memo by Alan Dye that aimed to declare the voter guides OK for churches. That document -- while technically correct for the most part, but very brief -- did not address or glossed over many issues. The bottom line is that Christian Coalition voter guides can compromise a church's tax status because of what they are based on and that they are likely to be partisan because of the way they are prepared. The next two "c.c.watch" posts will include: 1) a reprint of our recent article on voter guides; and 2) information about the firestorm created by the sample Christian Coalition voter guide sent to pastors in an attempt to get them to order the voter guides for their churches.
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Law Offices Caplin & Drysdale Chartered One Thomas Circle, N.W. Washington, D.C. 20005-5802 202/862-5000
URGENT MEMORANDUM FOR CHURCHES CONCERNING DISTRIBUTION OF "VOTER GUIDES" Milton Cerny & Albert G. Lauber, Jr.
Under 501(c)(3) of the tax code, charities are absolutely prohibited from intervening in political campaigns by endorsing or opposing candidates for public office. This bar against campaign activities applies with full force to churches. There is no Supreme Court authority, under either the Religion Clauses or the Free Speech Clause of the First Amendment, that confers on churches a blanket exemption from tax-law requirements, such as the prohibition against political intervention, that apply even-handedly to churches and other charities.
IRS rules permit charities, including churches, to engage in nonpartisan voter education activities. As Election Day approaches, the Christian Coalition and other groups may ask churches to distribute "voter guides" to their members, contending that this is a permissible type of voter education. Churches should approach distribution of such voter guides with extreme caution.
Before agreeing to distribute a voter guide prepared by another organization, a church must ensure that the guide is truly nonpartisan and does not endorse or oppose any candidate, either explicitly or by implication. It does not matter that the church may not intend any political intervention. The IRS and the courts do not look to the church's motive, but to whether the voter guide in fact favors one candidate over another.
Election activity by charities, including churches, is currently a subject of intense IRS interest. The IRS recently said that it will have "zero tolerance" for violations, noting that the law "prohibits all forms of participation or intervention in any political campaign," even if the charity's involvement is "subtle" or "inadvertent." Several charities recently lost their tax exemptions for making implied endorsements of political candidates. And in delivering its recent warnings, the IRS specifically cited a case where a church had its exemption revoked for political activity in the 1992 campaign. The consequences of an IRS audit can be severe: even if a church does not lose its exemption and ability to receive deductible contributions, the IRS can impose monetary penalties against the church and its officials.
If a church distributes a partisan voter guide, it will constitute improper political activity by the church, even though someone else prepared the guide. In a recent speech, a high-ranking IRS official warned that the Service will examine all aspects of voter guides for signs of bias, including the array of questions presented, the size of type used for different candidates, and the photographs of candidates themselves. Thus, it is essential that churches consult their legal advisors and carefully review any voter guide before agreeing to distribute it. The fact that the Christian Coalition prepared a voter guide does not ensure that it is nonpartisan. The Christian Coalition is not a 501(c)(3) charity, and IRS rules thus allow it to engage in some political activity, such as disseminating voter guides that endorse or oppose candidates. By contrast, IRS rules absolutely prohibit a church from distributing a partisan guide. In the past, the Christian Coalition has reportedly withheld distribution of its voter guides until the last Sunday before the election in order to maximize their impact. This mode of distribution could jeopardize a church's tax-exempt status if it prevents meaningful review of the guide before it is disseminated. Unless a church's legal advisors are given sufficient time to review the voter guide in advance of its distribution, the church will have no way of knowing whether the guide is truly nonpartisan and thus permissible for it to distribute.
The Christian Coalition has not as yet distributed its voter guides for the November 1996 election, and it has refused requests to release them earlier than in past years. Thus, it is not possible to advise pastors now whether these guides will comply with IRS requirements. The Coalition's publication of voter guides in prior elections, however, counsels careful scrutiny of the November 1996 guides when they finally appear. The Federal Election Commission has determined that the Coalition improperly engaged in partisan political activity when distributing voter guides during the 1990, 1992, and 1994 campaigns. Litigation on that subject is now pending in federal court.
The Christian Coalition contends that its voter guides are nonpartisan because they do not expressly endorse candidates and are based on candidates' responses to questionnaires. In fact, the tax rules are not so simple. A voter guide may implicitly favor a candidate even though it does not tell people how to vote or evaluate candidates with "plus" or "minus" signs. The overall content and presentation of the guide must be considered in order to determine whether it is even-handed, neutral, and objective in portraying candidates' positions.
If a voter guide exhibits bias in favor of or against any candidate, the IRS will treat it as electioneering activity, even if the guide disclaims any intent to make endorsements. Whether a voter guide is biased depends on all the facts and circumstances. The following "red flags" may indicate that a voter guide will be viewed as partisan by the IRS:
---Focus on issues tracking an organization's known agenda. Nonpartisan voter guides usually describe candidates' positions on a wide range of issues important to the voting public. If the issues presented appear to have been selected to encourage readers to compare candidates' positions with those of the entity publishing the guide, the IRS may find an implied endorsement of the candidate whose position tracks the entity's own position. For example, in 1989 the IRS proposed to revoke the exemption of a foundation established to promote conservative Christian values in part because of voter guides it distributed during an election campaign. Because the guides identified the foundation's religious focus and emphasized issues on which its position was readily apparentparents' rights, abortion, ERA, homosexual rights, church school freedom, evolution, creationism, nuclear freeze, state lottery, and legalized prostitutionthe IRS saw the guides as an attempt to influence the election.
---Unfair description of candidate's position. A voter guide based on candidate responses to questionnaires must report those responses accurately, with no editorial changes. If a voter guide misrepresents a candidate's responses in an effort to make the candidate appear extreme or radical, such bias may constitute implied opposition to that candidate and implied endorsement of his or her opponent. For example, the Christian Coalition typically asks candidates to complete questionnaires containing almost 100 questions, but it selects for inclusion in the voter guide only 6-10 responses that often vary from one electoral district to another. If these responses are chosen with a view to unfairly polarizing the candidates in order to make one candidate appear unacceptable, that would create a serious risk of bias. Bias may also occur if the voter guide omits key qualifying language from a candidate's questionnaire response, portraying the candidate as wholeheartedly "supporting" a position whereas his or her stance is actually more complex. ---Unfair summary of candidate's voting record. A voter guide must be objective and even-handed in stating whether a candidate "supports" or "opposes" a particular position. For example, a voter guide could not fairly say that a candidate "supports" federal funding for indecent art on the basis of one legislative vote, if that candidate had opposed such funding in other legislative votes. Similarly, a voter guide could not fairly say that a candidate's position is "unclear" on federal funding for abortion, if the candidate had voted against such funding at every available opportunity.
---Wide distribution close to election. When so-called "voter education" material is distributed widely on the eve of the election, the IRS is more likely to regard it as political intervention designed to affect election outcomes. October 10, 1996 (The authors are partners in the law firm of Caplin & Drysdale, Chtd, Washington, D.C. Mr. Cerny was formerly Chief of the Exempt Organizations Ruling Area at IRS and Technical Advisor to the Assistant Commissioner, Employee Plans and Exempt Organizations. Mr. Lauber previously served as Deputy Solicitor General in the Department of Justice, with principal responsibility for litigating tax cases before the U.S. Supreme Court. Both have written extensively on the issue of nonprofits and electioneering activities.)
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(For more information or to subscribe to the complete, unique and timely reportage/commentary of The "c.c.watch" Electronic News Service, call 305/751-5001. We track and report on the activities of Pat Robertson, his many enterprises [especially the Christian Coalition], and his fellow travelers...and then we disseminate information that the public might never otherwise receive.) ```
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