Speaking of the UCC

Just to clarify a couple of points about the UCC-Obama speech flap:

1) The IRS letter doesn't mention the content of Obama's speech; merely the fact that it was made. Some people are focussing on the content, and noting it was non-political, but the IRS guidelines don't restrict what can be said so much as who can say it, and what they do around saying it. So the IRS is concerned that Obama was there at all, and that his campaign workers set up tables on the public street outside the building where the General Synod was meeting. The 1st Amendment still applies in these cases, but it is not, as constitutional law has noted on more than one occassion, an absolute proscription on who can speak. It is, however, an almost absolute proscription on controlling what is said, and the exceptions to the ban on 501(c)3 organizations being "involved" (a term of art in this matter) in politics recognize this.

2) John Wilson understands this, and puts the entire matter in the appropriate context: these kinds of investigations have a chilling effect on other 501(c)3 organizations (it's not just churches!). He cites the Art Institute of Chicago which decided not to present a documentary on Obama, for fear of recieving just this kind of IRS challenge to their status. These things are very expensive, as I said, and charitable organizations don't have lawyers on retainer to protect them from such investigations. This is not, in other words, just a "cost of doing business" for such charities.

3) So, is this investigation "political"? Barry Lynn said "no" on NPR yesterday; but I agree with Pastor Dan: if it's walking like a duck, and quacking like a duck, it's hard to say it's not a duck. I still expect this to end as the All Saints investigation did; but I still think it stinks, you should pardon the expression, to high heaven.

And now for a completely typical blog post...

I guess it depends on what you mean by "political":

The Internal Revenue Service has told a prominent Pasadena church that it has ended its lengthy investigation into a 2004 antiwar sermon, church leaders said Sunday.

But the agency wrote in its letter to All Saints Episcopal Church that officials still considered the sermon to have been illegal, prompting the church to seek clarification, a corrected record and an apology from the IRS, the church's rector told standing-room-only crowds of parishioners at Sunday's services.

The church also has asked the Treasury Department, which oversees the IRS, to investigate allegations that officials from the Justice Department had become involved in the matter, raising concerns that the investigation was politically motivated.

You may recall the problem for All Saints was a sermon. But everyone agrees no political endorsement was made in the sermon:

At All Saints, Rector J. Edwin Bacon on Sunday told the congregants that the guest sermon by Regas, a former rector, on Oct. 31, 2004, had prompted the warning from the IRS. In the sermon, Regas did not instruct parishioners whom to support in the presidential election but said that Jesus would have told the president that his Iraq policies had failed.

The IRS' letter cited a Times article describing Regas' sermon as having triggered the agency's concerns.

Which didn't stop the IRS from saying All Saints had done something wrong, even though they wouldn't be prosecuted for it. So how is this not a violation of IRS regulation?

For years, [Terry] Fox [pastor of Immanuel Baptist Church in Wichtia, Kansas] flaunted his allegiance to the Republican Party, urging fellow pastors to make the same “confession” and calling them “sissies” if they didn’t. “We are the religious right,” he liked to say. “One, we are religious. Two, we are right.”

Wonder if this newspaper article will trigger an IRS investigation? Since Pastor Fox is no longer the pastor of that church, and since this happened over a span of nearly 30 years, I rather doubt it.

But it does put the investigation of All Saints Episcopal Church into context, doesn't it?

The Demise of Public Discourse-Part II

(edited since first posting; in case you noticed and/or were wondering)

I'd almost forgotten about this:

The Internal Revenue Service has told a prominent Pasadena church that it has ended its lengthy investigation into a 2004 antiwar sermon, church leaders said Sunday.

But the agency wrote in its letter to All Saints Episcopal Church that officials still considered the sermon to have been illegal, prompting the church to seek clarification, a corrected record and an apology from the IRS, the church's rector told standing-room-only crowds of parishioners at Sunday's services.

The church also has asked the Treasury Department, which oversees the IRS, to investigate allegations that officials from the Justice Department had become involved in the matter, raising concerns that the investigation was politically motivated.

Part of the background of this case is summed up in a post I made earlier. But the allegations of political motivations don't come from idle bloggers like your humble host. They are prompted by e-mails obtained via an FOIA request made by the church. As the article points out that DOJ was involved in the case "before the IRS made any formal referral of it for possible prosecution." But there's more to it than that. A time line of the case, constructed from the documents at the church's website, (a convenient index of the documents is here)helps put this in perspective.

The IRS sent a "Notice of Tax Inquiry" on June 9, 2005. It's concerns were raised by an LATimes article about the Rev. George F. Regas, Pastor Emeritus of the church (p. 3 at the "index" link). The church responded on June 24, 2005 (p. 16 at "index"). The IRS responded on September 2, 2005, and submitted a "draft" Information Document Request ("IDR") as required by the Internal Revenue Code (pp. 21-23 at "index"). The IDR is where things get interesting, at least behind the scenes.

Starting at p. 50 here, you can read the IRS e-mails discussing DOJ interests/concerns with the case and with the IRD. The e-mails recognize the case is "sensitive," which is probably why DOJ was getting involved. It is clear from these e-mails that the IDR was being held up by DOJ review. However, whether that review was appropriate is an open question. Marcus Owens, "a former director of the IRS division that handles tax-exempt organizations," per the LATimes article, represented the Church in this matter and wrote to the IRS on March 29, 2006, (here, at p. 61). The LATimes article is coy:

One e-mail, for example, appears to show coordination between IRS and Justice Department officials about a request to the church for documents. Others discuss the timing of the request and news coverage about the case.

In fact, the first e-mail, on February 28, 2006, indicates no further contact will be made with the church until DOJ "is on board with it." On that same date (document at p. 52), the IRS procedure is "still on hold awaiting review and approval from DOJ as to their being willing to support and enforce the issuance of an IDR and probable summons." On July 7, 2006, another e-mail indicates that the IRS Chief Counsel is running the IRD past Justice and that they expect a response from Justice soon (p. 57).

Then, in an e-mail titled "Actions needed to be prepared for Justice response," dated July 18, 2006, another LATimes article with quotes from Marcus Owen is passed around for everyone to see (p. 58). Finally, on July 17, 2006, Justice has almost signed off on the IDR ("We are optimistic that they will have no technical concerns with the All Saints IDR so the goal is to be getting ourselves ready to issue that IDR.") (p. 59). That IDR was finally issued on July 24, 2006. The church objected to the breadth of the IDR (p. 14 at the "IDR" link), and other issues surrounding it, and requested the IRS issue an adminstrative summons so the church could challenge the procedures of the IRS in court. One problem with the IDR the letter noted is that it asked for "written or oral communications identifying one or more candidates." As Mr. Owens points out, prayers for the President are a regular part of Episcopal liturgy, which makes identifying such "oral communications" a bit onerous, at best.

The objection to the IRD led to a series of letters about the summons itself, and finally the IRS dropped the matter on September 10, 2007. Basically, without any information other than what the IRS received from the church on June 24, 2005, the IRS decided that "the church intervened in the 2004 Presidential election campaign. However, they decided it was a one-time occurrence, and the Church had policies in place to prevent such things from happening, and the IRS would not leave them alone with a warning to watch what they post on their website (No, I'm not kidding. Read the letter here, at p. 8. Mr Owens, the former IRS director of this deparment, smells a rat:

"In view of the fact that recent congressional inquiries have revealed extensive politicization of [the Department of Justice], my client is very concerned that the close coordination undertaken by the IRS allowed partisan political concerns to direct the course of the All Saints examination," attorney Marcus S. Owens wrote in a letter Friday requesting an investigation.

The problems this raises are not lost on the congregation members, either:

"It's so important for this church to be speaking truth to power, and I applaud that," said Sharon Fane of Burbank, who said she had joined All Saints largely because of its IRS battle. "But I have some fear for us too. What will this cost?"

The church's top lay leader, senior warden Rich Llewellyn, said the decision to push for answers from the IRS was clear, given the significance of the issues and the church's long history of social activism. "We really need clarity from the IRS," he said. "Otherwise, it's a very scary prospect to think that these agencies are looking over our shoulders at what our pastors can preach in church."

This is, let us not forget, the kind of thing that got Nixon in trouble. But then we had a Congress willing to investigate a sitting President and his abuses of power. Rep. Adam Schiff of Burbank tried to get an investigation of the IRS going in 2005, precisely because of cases like that of All Saints. Cases, let us note. He got nowhere. 2 years later we have a CYA letter from the IRS (you did something really bad, but we'll let you off this time), an Attorney General who abruptly resigns, a new Attorney General designate with the blessing of the Democrats who revels in the use of state power, and a church that could afford to stare down the IRS.

Does any of this add up to: "The system worked."?

Upon reflection, consider the facts here: this case was prompted by an article in the LATimes. Now, I could go into a pulpit this Sunday and preach a sermon denouncing George Bush as the anti-Christ and telling people to vote for Dennis Kucinich in the upcoming primaries, and no paper would take notice, much less the IRS. So there's an interesting selection process going on here: the IRS is only going to pick on prominent churches which are likely to be large enough, and wealthy enough, to defend themselves (most churches I've been in couldn't even afford the staff to post all those documents to the church website, much less get volunteers to do it). But did the IRS expect the church to back down? Apparently so, because after the church twice refused to comply with the administrative subpoena, and made clear its position that the issue was best presented to a court and that it would go there, the IRS decided: "Never mind." There is no way to read their final letter except as a CYA measure for something they knew they couldn't defend before a judge. So what is the lesson? That prominent "liberal" churches will be targeted? But if they are prominent and liberal, I assume they are ready to defend their rights under the First Amendment (which covers both freedom of speech and freedom of religion). What is clear, especially given the information that came out of the attorney firings scandal, is that this was politically motivated. It takes a determined naivete indeed, to think otherwise.

Now it will be interesting to see if any further investigation is prompted, or supported, by prominent California Democrats.

Escape from the Planet of WWJD?

When my blog grows up, it's going to have categories for stories like this. For now, the series continues, and you can follow the trail of bread crumbs like I have to.

I found this version of the LA Times article about All Saint's Episcopal Church in Los Angeles, which includes some information at the end which makes it sound like the situation may yet end well. But this sentence caught my eye for the first time:

The letter went on to say that "our concerns are based on a Nov. 1, 2004, newspaper article in the Los Angeles Times and a sermon presented at the All Saints Church discussed in the article."

The IRS cited The Times story's description of the sermon as a "searing indictment of the Bush administration's policies in Iraq" and noted that the sermon described "tax cuts as inimical to the values of Jesus."

Now, to put that in context, here is a bit of new information from the church's tax attorney:

"I doubt it's politically motivated," Owens said. ""I think it is more a case of senior management at IRS not paying attention to what the rules are."

According to Owens, six years ago the IRS used to send about 20 such letters to churches a year. That number has increased sharply because of the agency's recent delegation of audit authority to agents on the front lines, he said.

Now, just think about it. The IRS is threatening a church's tax-exempt status on the basis of a newspaper article, and how that article described a sermon. This is how the sermon is described in the linked (not the original) article:

Regas' 2004 sermon imagined how Jesus would admonish Bush and Kerry if he debated them. Regas never urged parishioners to vote for one candidate over the other, but he did say that he believes Jesus would oppose the war in Iraq, and that Jesus would be saddened by Bush's positions on the use and testing of nuclear weapons.

In the sermon, Regas said, " President Bush has led us into war with Iraq as a response to terrorism. Yet I believe Jesus would say to Bush and Kerry: 'War is itself the most extreme form of terrorism. President Bush, you have not made dramatically clear what have been the human consequences of the war in Iraq.' "

Later, he had Jesus confront both Kerry and Bush: "I will tell you what I think of your war: The sin at the heart of this war against Iraq is your belief that an American life is of more value than an Iraqi life. That an American child is more precious than an Iraqi baby. God loathes war."

If Jesus debated Bush and Kerry, Regas said, he would say to them, "Why is so little mentioned about the poor?''

In his own voice, Regas said: ''The religious right has drowned out everyone else. Now the faith of Jesus has come to be known as pro-rich, pro-war and pro-American…. I'm not pro-abortion, but pro-choice. There is something vicious and violent about coercing a woman to carry to term an unwanted child."

When you go into the voting booth, Regas told the congregation, "take with you all that you know about Jesus, the peacemaker. Take all that Jesus means to you. Then vote your deepest values."

You might call that "searing." I don't. Maybe urging people to "vote your deepest values" is "searing" in the current political context, but I doubt that kind of subtle irony was what the original journalist had in mind. And still, the question is, should the IRS investigate because that kind of description gets into a newspaper article? Is that all it takes to trigger IRS scrutiny of a church? Since the IRS can't tell us who they investigate, or why, how do we find out?

As I said before, the clear effect here is a "chilling" one. Whether it's meant to be that way is irrelevant. It's what you do, not what you mean to do, that counts.

WWJD, Part 3

Turns out Bush's Administration is a uniter, and that there is a pattern:

When Ted Haggard, head of the 30-million-member National Assn. of Evangelicals, heard about the All Saints case Monday, he told his staff to contact the National Council of Churches, a more liberal group.

Haggard said he personally supports the war in Iraq and probably would not agree with much in the Rev. George Regas' 2004 sermon at All Saints, which was cited by the IRS as the basis for its investigation. But Haggard said he wants to work with the council of churches "in doing whatever it takes to get the IRS to stop" such actions.

"It is a violation of the Constitution for the IRS to threaten that church. It may not be a violation of IRS regulations, but IRS regulations have been wrong," said Haggard, who is pastor of the 12,000-member New Life Church in Colorado Springs.

Robert Edgar, general secretary of the National Council of Churches, cheered when he heard of Haggard's offer, which Edgar said represented a rare reaching out by the evangelical group to the council.

Edgar, a United Methodist minister, former Democratic congressman from Pennsylvania and ex-president of the Claremont School of Theology, said the IRS move against All Saints appeared to be "a political witch hunt on George Regas and progressive ideology. It's got to stop." He stressed that Regas did not endorse a candidate in the sermon.

This is the closest thing I've seen to an explanation of what disturbed the IRS, and it still seems like a slippery slope to me. A judgment based on one sermon, and the interpretation of that one sermon, is barely a basis for a criminal investigation, much less an IRS investigation.

At All Saints, Rector J. Edwin Bacon on Sunday told the congregants that the guest sermon by Regas, a former rector, on Oct. 31, 2004, had prompted the warning from the IRS. In the sermon, Regas did not instruct parishioners whom to support in the presidential election but said that Jesus would have told the president that his Iraq policies had failed.

The IRS' letter cited a Times article describing Regas' sermon as having triggered the agency's concerns.

And a bit more detail, which is always revealing:

In 1976, Congress passed a law that required audits of churches to be done only if there was a "reasonable basis" to believe a violation had occurred, and made such audits subject to a special approval process from senior IRS officials.

Marcus Owens, the former head of tax-exempt organizations at the IRS and now a private attorney representing All Saints, said that the more recent IRS policy changes lowered the threshold for church audits, allowing front-line IRS agents to pursue probes with only cursory approval from above.

"This is exactly the sort of 1st Amendment briar patch the Congress wanted to keep the IRS out of," said Owens. The IRS disputed Owens' contention, saying audits still face a rigorous approval process by high-level agency officials.

And frankly, this is a very curious line, and still amounts to: "Watch what we think you say."

Steven Miller, the IRS commissioner of tax-exempt and governmental entities, said there is nothing political about how cases are chosen. Churches need to be more cautious about what they say during election seasons, and make it clear when they're not speaking for the church, Miller said. "If there's no election, there's no potential for intervention.

"The courts have said, yes, you have freedom of speech, but not the right to tax-exempt status," he added.

Tax-exempt status is not a right; but neither should it be a privilege subject to the whims or opinions of the IRS. Given the comments in this article from church leaders, and the experience of Pastor Jim Henry (or any politician, from Bill Clinton to Tom DeLay, who has visited a prominent church on Sunday morning during elections), I'd say we need a much clearer delineation of what constitutes acceptable speech.

WWJD?

LA Times:

The Internal Revenue Service has warned one of Southern California's largest and most liberal churches that it is at risk of losing its tax-exempt status because of an antiwar sermon two days before the 2004 presidential election.

Rector J. Edwin Bacon of All Saints Episcopal Church in Pasadena told many congregants during morning services Sunday that a guest sermon by the church's former rector, the Rev. George F. Regas, on Oct. 31, 2004, had prompted a letter from the IRS.

In his sermon, Regas, who from the pulpit opposed both the Vietnam War and 1991's Gulf War, imagined Jesus participating in a political debate with then-candidates George W. Bush and John Kerry. Regas said that "good people of profound faith" could vote for either man, and did not tell parishioners whom to support.

But he criticized the war in Iraq, saying that Jesus would have told Bush, "Mr. President, your doctrine of preemptive war is a failed doctrine. Forcibly changing the regime of an enemy that posed no imminent threat has led to disaster."

On the face of it, all I can say is: Incredible.

On a day when churches throughout California took stands on both sides of Proposition 73, which would bar abortions for minors unless parents are notified, some at All Saints feared the politically active church had been singled out.

"I think obviously we were a bit shocked and dismayed," said Bob Long, senior warden for the church's oversight board. "We felt somewhat targeted."

Bacon said the church had retained the services of a Washington law firm with expertise in tax-exempt organizations.

And he told the congregation: "It's important for everyone to understand that the IRS concerns are not supported by the facts."

After the initial inquiry, the church provided the IRS with a copy of all literature given out before the election and copies of its policies, Bacon said.

But the IRS recently informed the church that it was not satisfied by those materials, and would proceed with a formal examination. Soon after that, church officials decided to inform the congregation about the dispute.

In an October letter to the IRS, Marcus Owens, the church's tax attorney and a former head of the IRS tax-exempt section, said, "It seems ludicrous to suggest that a pastor cannot preach about the value of promoting peace simply because the nation happens to be at war during an election season."

Owens said that an IRS audit team had recently offered the church a settlement during a face-to-face meeting.

"They said if there was a confession of wrongdoing, they would not proceed to the exam stage. They would be willing not to revoke tax-exempt status if the church admitted intervening in an election."

And here's the nut:

Some congregants were upset that a sermon citing Jesus Christ's championing of peace and the poor was the occasion for an IRS probe.

"I'm appalled," said 70-year-old Anne Thompson of Altadena, a professional singer who also makes vestments for the church.

"In a government that leans so heavily on religious values, that they would pull a stunt like this, it makes me heartsick."

The offending sermon? At the church's website, in the archives, located by date.

The charitable interpretation is that this is the IRS trying to provide "balance" by investigating high profile churches. But there is a difference between preaching on issues like war or abortion or homosexual marriage, and telling parishioners who to vote for.

And then there's that whole question of politicians, from any party, making prominent public appearances at churches. I wonder if the IRS has investigated the churches where Tom DeLay has appeared on Sunday mornings?