Compare these recent statements from the Alliance Defense Fund (ADF) on the "Pulpit Initiative":
ADF is not trying to get politics into the pulpit. Churches can
decide for themselves that they either do or don’t want their pastors
to speak about electoral candidates. (ADF press release dated September 25, 2008)
The point is not whether pastors actually will speak on the issues of
candidates and elections (and no one is forcing or telling them to
speak about candidates or elections), but whether the government has
the right to tell them they cannot under threat of losing their
tax-exempt status . . . (Essay by ADF lawyer Erik Stanley in this week's
LA Times)
with this ADF Q & A on the "Pulpit Initiative" that appeared on its website in May 2008:
What kind of commitment is required [for a church] to participate [in the "Pulpit Initiative"]?
Each client church will assist the ADF in preparing
a specific challenge to the Johnson Amendment that involves a pastor
preaching from the pulpit where the sermon conflicts with the IRS
speech restriction. Each pastor will prepare the sermon with the assistance and direction of the ADF to ensure maximum effectiveness in challenging the IRS.
(The "IRS speech restriction" referred to here is the requirement that
501(c)(3) tax-exempt organizations refrain from supporting or opposing
candidates for elective public office as part of their official
organizational activities; in this case, that would be a sermon delivered during a worship service at a church or other house of worship.) This answer no longer appears in the ADF Q & A. The question is the same, but there's a new ADF answer for the question. That answer appears below the fold.
Why did the ADF change its tune on this matter? Could it be that the ADF realized that it does not sound very good to say that lawyers are going to "direct" sermons? After all, isn't it sort of clergy malpractice, if you will, for a minister to let a lawyer "direct" a sermon? Could it be that the ADF realized that it is difficult to argue that ministers are simply exercising their freedom to preach, while also saying that lawyers need to direct sermons to ensure that they cross the relevant legal line? Could it be that the ADF began to understand that its earlier answer strongly suggested that the resulting sermons would not be messages that just naturally occurred in the process of good ministry but rather messages that had been cooked up by a team of lawyers with a case to make?
Perhaps an ethical complaint also had something to do with the ADF's change in tune. After the ADF released its initial documents regarding the project in the spring of 2008, three former IRS officials filed a complaint with the IRS Office of Professional Responsibility (OPR) in the fall of 2008, accusing Alliance
Defense Fund lawyers of violating ethics rules by soliciting and encouraging clients to violate the 501(c)(3) rules. Among other things, the complaint said (the quotes below are from the complaint; the nonquoted text is my own):
[The IRS ethical rules] say that lawyers practicing
before it "may be sanctioned for actions, including 'incompetent
and disreputable conduct,'" and that the rules define such conduct to
include "[w]illfully assisting, counseling, encouraging a client or
prospective client in violating, or suggesting to a client or
prospective client to violate, any Federal tax law. . . ."
Could it be that the ADF is trying to walk back its earlier comments and make it look as if the preachers are essentially striking out on their own, while the ADF simply stands ready to assist them if they decide on their own to cross the legal line? Apropos of this possibility, Rob Boston noted earlier this week that the ADF has added a disclaimer to its most recent publications on the topic. The disclaimer says: "Any tax advice in this communication was not written and is not intended to be used for the purpose of (i) avoiding penalties imposed by the Internal Revenue Code or (ii) promoting, marketing, or recommending any transaction or matter addressed herein."
I certainly have no expertise in the IRS ethical rules for lawyers that practice before it. Nevertheless, it seems to me that there's a good argument that the ADF has crossed the relevant ethical line, no matter what kind of disclaimer it has recently added to its materials. (It is the reality of the ADF's actions that are crucial, not the tune it is singing right now.) Thus, I was not surprised to see that the tax experts Laurie Goodstein consulted for her story in today's New York Times said that "it is more likely that the Alliance Defense Fund
and its lawyers will face legal sanctions than the ministers, who may
simply receive warnings to avoid politicking in the future."
As you will recall, there have not only been complaints that the ADF has violated the relevant ethical rules. There also have been complaints that the ADF itself has (or will, on September 28) violate the electioneering prohibitions that apply to it as a 501(c)(3) organization. I have not assessed those complaints yet. But I can say this. Because the ADF is the mastermind of this project and the only actor in this drama that clearly has expertise in the law, it certainly makes sense for the IRS (and later, the courts) to turn its gaze first to the ADF when the Service evaluates whether there have been any violations of the applicable legal rules in this matter.