Erik Stanley

The IRS recently apologized for targeting conservative groups with audits and investigations during the 2012 election. Apparently, the IRS targeted the groups because they had the words “tea party” or “patriot” in their names.

In some cases, the IRS asked about political affiliations, lists of donors, and family members’ activities.

An IRS official apologized, saying, “That was wrong. That was absolutely incorrect, it was insensitive and it was inappropriate. That’s not how we go about selecting cases for further review.... The IRS would like to apologize for that.”

What the IRS did here is unconstitutional, and it was right to apologize for its actions. But this story illustrates the problem we face when we allow government agencies and officials to exercise unfettered power to enforce vague and ambiguous laws.

In fact, the IRS has been exercising that kind of power since 1954 with the Johnson Amendment, which allows it to censor a pastor’s sermon from the pulpit.

The Johnson Amendment prohibits “participating in or intervening in” a political campaign “on behalf of or in opposition to a candidate for public office.” The IRS has interpreted this over the years to say that churches cannot “directly or indirectly” participate in a campaign. Yet there is no definition of what it means to “indirectly” participate in a campaign.

Instead, the IRS demands churches consider “all the facts and circumstances” before undertaking something that might violate the Johnson Amendment.

Basically, this means the IRS won’t tell churches with precision what speech does or doesn’t violate the amendment. Instead, it will wait and evaluate everything after the fact to determine if the church has violated the law.

Adding to the ambiguity, the IRS has gone so far as to say churches can violate the Johnson Amendment by the use of “code words”—i.e., a church doesn’t have to name a candidate specifically to break the IRS statute. Rather, if it speaks in a certain way that can be interpreted as supporting or opposing a candidate, then that could violate the law.

Erik Stanley

Erik Stanley is senior legal counsel, director of Church Project with Alliance Defending Freedom.