The Alliance Defense Fund (ADF), an Arizona nonprofit organization, has launched an effort to encourage ministers to "preach from the pulpit a sermon that addresses the candidates for government office in light of the truth of Scripture." "Pulpit Freedom Sunday" is planned for Sunday, Sept. 28, slightly more than a month before the presidential election. The group will intentionally use sermons to challenge the Internal Revenue Code's ban on partisan electioneering by 501(c)(3) organizations. It hopes any investigations lead to a lawsuit and a court decision finding the prohibition to be unconstitutional. The May 9 Wall Street Journal reports this as "the latest attempt by a conservative organization to help clergy harness their congregations to sway elections." ADF argues the ban on election intervention is government intrusion that prevents clergy from advising their congregations, forcing pastors to choose between speaking about candidates and losing their tax-exempt status. Its executive summary states, "Churches have too long feared the loss of tax exempt status arising from speech in the pulpit addressing candidates for office. Rather than risk confrontation, pastors have self-censored their speech, ignoring blatant immorality in government and foregoing the opportunities to praise moral government leaders."

An ADF white paper describes the group's initiative in further detail, outlining its rationale for this effort. ADF believes that the electioneering ban:

• Violates the Establishment Clause by requiring invasive government monitoring of religious organizations' speech to ensure they are not intervening in an election
• Violates the Free Speech Clause because it requires the government to discriminate against speech based solely on the content of the speech; therefore, there are conditions of tax exemption based on refraining from certain speech
• Violates the Religious Freedom Restoration Act (RFRA), which requires that before any law can burden the exercise of religion, there must be a compelling reason, and the government has no compelling reason for the ban

ADF would like 40 or 50 houses of worship to take part. As a part of this litigation strategy, ADF will prepare and provide legal defense for participating pastors. An ADF frequently asked questions sheet explains that the sermons will be written "with the assistance and direction of the ADF to ensure maximum effectiveness in challenging the IRS. Should the IRS investigate the church, the church may then participate as a client in a lawsuit against the IRS and will assist the ADF in winning the lawsuit by communicating with the ADF and following counsel's advice concerning litigation strategy."

Americans United for Separation of Church and State (AU), a group which often initiates complaints to the IRS of prohibited partisan activity, responded with a press release denouncing the initiative, saying the "Religious Right group's plan to ask churches to violate federal tax law on electioneering is deplorable." Other opposition to this effort includes the Interfaith Alliance, which issued a statement noting, "When religious leaders endorse candidates from the pulpit, they weaken both the sanctity of religion and the integrity of democracy."

This project overlooks some fundamental rights of 501(c)(3) organizations and the capacity of church leaders as individuals. 501(c)(3)s can discuss issues, even those of importance to an election. Religious organizations may engage in voter education campaigns, invite candidates to speak at their facilities, or release voter guides, as long as such activity does not support or oppose a candidate. In addition, as individuals, church leaders may endorse candidates without any negative consequences to the church.

However, given vague rules and unclear enforcement by IRS, many places of worship are likely to be confused. ADF references the All Saints Episcopal Church case as an example of such ambiguity; the IRS closed the examination without penalizing the church, even though the agency determined that the church engaged in direct campaign intervention.

Rep. Walter Jones (R-NC) introduced related legislation, H.R. 2275, which would repeal the prohibition on campaign intervention for all 501(c)(3) organizations. If the bill were enacted, religious organizations and charities could engage in campaign activities without risking their tax exemption but would still have to abide by appropriate campaign finance laws. Jones introduced similar bills in past congressional sessions, but those only exempted houses of worship. S. 178, the Religious Freedom Act of 2007, introduced by Sen. James Inhofe (R-OK), would only exempt houses of worship. OMB Watch has opposed the Inhofe bill, arguing religious organizations should not be able to engage in activities that would remain prohibited for secular 501(c)(3) groups. At the core of the prohibition is the principle that taxpayers should not be required to fund partisan activities through tax exemption.

A recent Congressional Research Service report, Churches and Campaign Activity: Analysis Under Tax and Campaign Finance Laws, noted, "The line between what is prohibited and what is permitted can be difficult to discern. Clearly, churches may not make statements that endorse or oppose a candidate, publish or distribute campaign literature, or make any type of monetary or other contribution to a campaign.... In many situations, the activity is permissible unless it is structured or conducted in a way that shows bias towards or against a candidate. Some biases can be subtle and whether an activity is campaign intervention will depend on the facts and circumstances of each case."

The blurry line between what is and is not considered partisan electioneering has led to calls for the IRS to issue a bright-line rule so that nonprofits can comfortably know what they can and can not do prior to an election.