The IRS And 'Pulpit Freedom': No One Is Off The No-Electioneering Hook Yet

Far from rolling over, it looks like the IRS is girding for battle.

The Alliance Defense Fund (ADF) has announced it will hold another "Pulpit Freedom Sunday" on Sept. 27.

You might recall that during this event, the Religious Right legal outfit urges pastors to openly break the law by endorsing and/or opposing candidates from the pulpit. The group sponsored the first "Pulpit Freedom Sunday" on Sept. 28, 2008.

Thirty-three churches took part, and Americans United reported six of them to the Internal Revenue Service. (The ADF said the event wasn't partisan but in every single case we know of, pastors either endorsed Republican John McCain or attacked Democrat Barack Obama.)

This year's Pulpit Freedom Sunday is likely to be a smaller event. Only two states – New Jersey and Virginia – are holding gubernatorial elections, although there will be local elections in some parts of the country.

Americans United will be watching. We will report to the IRS any misguided houses of worship that flagrantly violate the law.

In the meantime, there appears to be some confusion about what exactly the IRS is doing in response to all of this.

Time magazine recently asserted that the IRS has dropped the investigations. A Time blog said the federal tax agency "has informed some of the several dozen churches that participated that they are no longer under investigation."

In fact, as far as we know, that's not the case. In one letter to one of the pastors, Gus Booth of Warroad Community Church in Minnesota, the IRS stated it was closing its investigation in light of a "procedural" problem. The letter makes it clear that once this procedural problem is cleared up, the investigation may be reopened.

The IRS letter to Booth (which is posted on the ADF's Web site) refers to a section of federal law, Section 7611 of the Internal Revenue Code, which governs church audits. This section of the law, which dates to 1984, requires that a senior-level IRS official sign off on church audits.

This whole matter can be rather byzantine, so I understand why there's confusion. In a nutshell, here's what happened: The IRS official who signed off on the audit of Booth's church was not high ranking enough. Booth could have used this technicality to challenge the audit in court, as a pastor in a separate case successfully did recently.

The IRS is taking steps to correct this matter. The tax agency recently issued proposed new regulations dealing with church audits. In the future, the director of exempt organizations will sign off on all church audits. This is a senior-level official, and his or her involvement in the process should resolve the matter.

The fact that the IRS has issued these new rules is a sign that it wants to have a mechanism in place that will enable it to investigate churches that openly flout the law by endorsing or opposing candidates.

Far from rolling over, it looks to me like the IRS is girding for battle. Churches that choose to follow the ADF down this misguided path can't say they weren't warned.