On September 28, thirty-three pastors around the nation participated in "Pulpit Freedom Sunday," an initiative by the Alliance Defense Fund (ADF) designed to challenge a 1954 amendment to the Internal Revenue Code (IRC) that prohibits churches from supporting or opposing candidates for political office from the pulpit.

Churches, which are tax-exempt under section 501(c)(3) of the IRC, can lose their tax-exempt status if they engage in prohibited electioneering. The ban against electioneering applies to all 501(c)(3) organizations.

ADF, an alliance of conservative attorneys, encouraged dozens of pastors to intentionally violate federal tax law by endorsing a political candidate from the pulpit, in hopes that the IRS will investigate the churches. ADF is hoping to challenge the IRS' ban on pulpit electioneering in federal court. Three former high level IRS officials filed an ethical complaint against ADF with the IRS.

According to an ADF Press Release, it will fight any attempt the IRS makes "to remove a church's tax-exempt status because a pastor exercised his constitutional right to engage in religious speech from the pulpit. The goal is to have the Johnson Amendment declared unconstitutional."

ADF released a list of the pastors who participated in "Pulpit Freedom Sunday" earlier today.

Rabbi Jack Moline, chairman of the Interfaith Alliance board, a group that believes religion and politics should remain separate, told the Washington Post that "a sanctuary should not be a place of political agitation on behalf of a candidate. On behalf of issues, yes. Of candidates, no."

Americans United for Separation of Church and State filed IRS complaints against six churches whose pastors endorsed candidates from the pulpit yesterday. Five of the six pastors in question openly endorsed Senator John McCain from the pulpit. The sixth pastor did not mention McCain, but he did criticize Senator Barack Obama stating, "according to my Bible and in my opinion, there is no way in the world a Christian can vote for Barack Hussein Obama. Mr. Obama is not standing up for anything that is tradition in America."

"Church leaders are supposed to tend to Americans' spiritual needs, not behave like partisan political hacks. I urge the IRS to act swiftly in these cases," said Rev. Barry W. Lynn, executive director of Americans United, in a Press Release.

Alabama Prison Commissioner Richard Allen halted voter registration drives inside state prisons after receiving complaints from Alabama Republican Party officials.

According to the Associated Press, Alabama Republican Chairman Mike Hubbard told Commissioner Allen in a September 26 letter that "the party supports the idea of registering more people to vote. But he says that doesn't extend to prisoners."

Various groups began registering prisoners inside Alabama state prisons earlier this week, so that the prisoners could cast absentee ballots in the November elections.

Close to 80 prisoners filled out registration forms during the two days that organizations conducted registration drives inside Alabama state prisons.

A New York Times editorial praised a court's decision denying the Real Truth About Obama's (RTAO) request to block Federal Election Commission (FEC) campaign finance rules. The editorial states; "The wholesale descent into Swift Boat campaigning has been blocked - for now - by a federal judge in Virginia."

If the group were to win on appeal, it would signal open season for countless stealth groups to flood the remaining weeks of the campaign with underhanded attack ads. [. . . ] Posing as a mere 'issue advocacy' operation, the group's ad attacks Mr. Obama's character and accuses him of 'lying' about his abortion record. In truth, it trashes the candidate's nuanced position.

In response the Center for Competitive Politics (CCP) states; "the RTAO issue offers a good example as to why we should not fear the advocacy efforts of outside groups. While RTAO believes that Obama's position on abortion is wrong, many other groups and the Obama campaign itself thinks that Obama's abortion position is correct."

The question of issue advocacy, as the New York Times brings up, should be left alone because the court had to decide whether or not to grant the group protection in case the FEC were to consider the group a political committee. The issues are a bit muddled, and each of these reactions, a bit zealous.

Following complaints from civil rights groups, the Justice Department announced on September 23 that it will not station criminal prosecutors at polls on Election Day. The civil rights groups fear that the presence of criminal prosecutors may intimidate minority voters.

According to the Associated Press, "[t]he move reverses a decades-long practice that put prosecutors on the lookout for voter fraud, ballot access violations and other polling problems."

Acting Assistant Attorney General Grace Chung Becker said in a statement that "[t]his decision was made as a precaution and is not the result of any instance of intimidation or complaint regarding any specific incident."

Even though this effort was focused on voter fraud, the Justice Department is pledging to place hundreds of federal monitors at polls around the nation to ensure that voters are not disenfranchised. The federal monitors will not be prosecutors, either.

Some civil rights groups are worried about intimidation by the federal monitors, as well.

A New York Times editorial puts the situation bluntly; "there is no excuse - except a desire to slow the public's right to know - for their ongoing efforts to block electronic filing of their reports on campaign donations."

The editorial is referencing the stalled Senate bill S.223 to require senators to file their contribution reports electronically. OMB Watch has supported this measure for a long time. Presidential candidates and candidates running for the House of Representatives file their campaign contributions in electronic form, allowing citizens quick access to such information. However, the in the Senate, filers do not have to file electronically. This delays disclosure by weeks and possibly till after the election.

As the New York Times observes; "the Senate is still cynically mired in the dark age of paper filings. Candidates submit required reports on political money and donors via paper sheaves that wend through slow-mo typing, re-typing and mailing, ensuring that full disclosure only occurs sometime after Election Day."

In August Pass223.com was launched to find out which senators are willing to officially support the bill. Visit Pass223.com and call your senators!

The Internal Revenue Service (IRS) has agreed to review a complaint by three former top IRS officials that the Alliance Defense Fund's (ADF) "Pulpit Freedom Sunday" violates federal tax law. Pulpit Freedom Sunday is part of an initiative asking churches to defy the IRS's prohibition against partisan politicking by preaching sermons that support or oppose a candidate for political office.

ADF distributed information about "Pulpit Freedom Sunday" at the Value Voters Summit 2008, which was held on September, 20.

BNA reported ($$) that a letter from Michael Chessman, director of the IRS Office of Professional Responsibility, acknowledges receiving the complaint from Marcus Owens, an attorney with Caplin & Drysdale, and a former IRS director. In the letter, the IRS has agreed to "review this information carefully and give it all due consideration."

To see other blog postings on "Pulpit Freedom Sunday," click here and here.

We reported when the Real Truth About Obama Inc.'s (RTAO) preliminary injunction request was denied. RTAO appealed the case and it is now before the U.S. Court of Appeals for the Fourth Circuit. BNA Money and Politics ($$) reports that the Federal Election Commission (FEC) and the Department of Justice (DOJ) have until Sept. 24 to respond to a bid for an injunction request to block enforcement of campaign finance rules. RTAO is challenging restrictions on independent political groups. The group plans to run issue ads examining the Democratic presidential candidate's position on abortion, and do so by raising unlimited contributions.

Attorney James Bopp of the Indiana-based firm Bopp Coleson & Bostrom, along with other attorneys for RTAO, filed a motion Sept. 17 with the Fourth Circuit, asking for injunctive relief pending their appeal of the district court decision by U.S. District Judge James Spencer. RTAO claims it has a First Amendment right to run advertising that attacks Democratic presidential nominee Sen. Barack Obama (D-Ill.) on the abortion issue and accuses him of "lying" about his record on the issue. Funding for the proposed ads would be restricted however, by FEC rules and possible enforcement action by the FEC or DOJ, the group says.

A bill passed the House yesterday that will ensure that non-partisan groups and election officials have the right to register voters at VA facilities. H.R. 6625, the Veterans Voting Support Act, passed by oral vote.

According to an AlterNet article, "[i]t requires the Department of Veterans Affairs to accommodate non-partisan groups seeking to register veterans living at VA facilities, and also allows top state election officials to designate the VA as a voter registration agency like state motor vehicle departments."

To see other recent blog postings about VA voter registration, click here or here.

Remember when the Department of Justice (DOJ) sent a letter to Democracy 21 President Wertheimer stating that DOJ would "vigorously pursue instances where individuals knowingly and intentionally violate clear commands" of the Federal Election Campaign Act.

Well now reportedly DOJ will not pursue an investigation into the donors of independent political groups. According to BNA Money and Politics ($$), Craig Donsanto, the director of the Election Crimes Branch in DOJ's Public Integrity Section was asked "whether he would approve of a case against a hypothetical contributor to a Section 527 group who gave a seven-figure donation based on a request to help or harm the prospects of a particular presidential candidate, Donsanto said, 'No.'"

His comments appeared to distance DOJ from the legal position taken in recent years by the Federal Election Commission. For example, the FEC adopted a regulation (11 CFR 100.57) after the last presidential election saying that money solicited by a group to support or oppose a federal candidate can be considered a regulated campaign contribution, limited to $5,000 annually per contributor. DOJ has backed the FEC in defending this regulation and others against a recent court challenge, but Donsanto's comments indicated that department apparently does not view the FEC rules as a strong enough basis for a criminal case.

Donsanto indicated that the legal standard established by the Supreme Court decision in the Wisconsin Right to Life (WRTL) case was not clear enough for a criminal prosecution. "DOJ currently has 77 active investigations of election crimes cases."

The Center for Competitive Politics is concerned about what this means for the individual groups themselves; " the only position staked out by DOJ, through Donsanto, was not to criminally pursue the donors, thus tacitly leaving the door open to criminal investigations of the independent groups who solicit and accept the donations."

Under Florida's "No-Match, No-Vote" law, individuals who have registered to vote and displayed valid ID at the polls may still have their votes invalidated. On September 8, Florida's Secretary of State decided to enforce the controversial law.

The "No-Match, No-Vote" law requires that a person's driver's license number or social security number be verified before they are registered to vote. According to an article on AlterNet, "State officials admitted in a recent challenge to the law, Florida NAACP v. Browning, that typographical errors by election workers are responsible for most of the failures." Yet, unsuspecting voters are the ones who are penalized. The same article states that the law "previously blocked more than 16,000 eligible Florida citizens from registering to vote, through no fault of their own, and could disenfranchise tens of thousands more voters in November."

Many voters will not realize that there is a problem with their voter registration until they show up to vote and are forced to cast provisional ballots. Then, they must show photo ID at the polls to cast the provisional ballot. Even after showing photo ID to cast the provisional ballot, they then must send a photocopy of their driver's license or social security card to election officials within 48 hours of the election or their vote will not count.

Myrna Pérez, counsel at the Brennan Center for Justice, told AlterNet that, "voters who do everything right, who submit forms that are complete, timely, and accurate, will suddenly find themselves unregistered when they go to vote, just because someone somewhere punched the wrong letter on a keyboard."

In June, a federal trial court in Gainesville, Florida, refused to stop the "no-match, no-vote" law in Florida NAACP vs. Browning after challenges from various advocacy groups. The court had previously granted an injunction against the law, but the state legislature revised the statute and the Eleventh Circuit Court of Appeals overturned the decision. Plaintiffs then appealed the amended law, but the court was satisfied with the legislature's changes and refused to enjoin the law.

The National Right to Work Legal Defense Foundation (Foundation) filed suit challenging three state statutes that define "corporation," "political issues committee," political issues expenditure," and "impose disclosure and reporting requirements on all organizations that make campaign related expenditures."

The case was brought as a result of a new law entitling Utah youth to school vouchers. Some teachers, who felt they were being pressured by labor unions to sign petitions opposing the new law, contacted the Foundation. The Foundation issued television and radio advertisements advising teachers and school employees to contact them for free legal aid if the teachers or school employees feel pressured.

Utah's Lieutenant Governor sent the Foundation a letter requiring them to file a "corporate financial report of political issues expenditure." While the Lieutenant Governor did not determine that the Foundation was a political committee, he determined that ads "constituted political issues expenditures."

The United States District Court for the District of Utah ruled that the statutes are valid in certain instances, but not as applied to the Foundation. The statutes must be "narrowly construed to apply only to those expenditures that unambiguously relate" to enacting or defeating a ballot measure. The Foundation's ads did not "expressly advocate for the enactment of school vouchers" and they are not the "functional equivalent of express advocacy as defined by Supreme Court precedent."

James Bopp, Jr., lead counsel for the Foundation, said, in a Press Release by the James Madison Center for Free Speech, "[t]his is a decisive victory for the First Amendment."

The Congressional Research Service issued a report ($$) that analyzes legislative efforts to lift the ban on church electioneering. The report is titled Churches and Campaign Activity: Analysis of the Houses of Worship Free Speech Restoration Act and Similar Legislation. It highlights legislation that has been introduced in the past few years in an attempt to allow religious organizations to engage in political activities without jeopardizing their tax exempt status.

Legislation to lift the church electioneering ban has been introduced in Congress each of the last four years. In the legislation, the word "church" is used to refer to all religious organizations.

The current bill, H.R. 2275, was referred to the House Ways and Means Committee on May 10. According to BNA, ($$) [u]nder the bill, churches and other Section 501(c)(3) organizations would be allowed to engage in all types of campaign activity without jeopardizing their tax-exempt status." The only limitation would be "that it could not be the organization's primary activity."

The previous bills included H.R. 235, (109th Congress) the Houses of Worship Free Speech Restoration Act, which said that "churches would not have been treated as participating in campaign activity" because of the content or presentation of any sermon or other "presentation made during religious services or gatherings."

H.R. 235 (108th Congress) which was an earlier version of the Houses of Worship Free Speech Restoration Act.

A provision in H.R. 4520 (108th Congress) would have allowed religious leaders to make political statements without their churches being regarded as having participated in campaign activity. Also, churches that unintentionally engaged in electioneering would not lose their tax-exempt status unless it happened more than three times in one year. Finally, unintentional violations would have been subject to a new excise tax.

H.R. 2357 and S. 2886 (107th Congress), the Houses of Worship Political Speech Protection Act, would have allowed "churches to engage in campaign activity so long as it was 'no substantial part' of a church's activities."

Under H.R. 2931 (107th Congress), the Bright-Line Act of 2001, a church would have "violated the campaign prohibition if it normally made expenditures for campaign activity in excess of 5% of its gross revenues. Lobbying expenditures could not have normally exceeded 20% of its gross revenues, and the church could not have normally spent more than 20% of its gross revenues on campaign and lobbying activities combined."

The Associated Press reports that U.S. District Judge James Spencer denied the Real Truth About Obama Inc.'s preliminary injunction request.

It was difficult to know how the judge might rule because he asked no questions and made virtually no comments during a nearly hour-long hearing on a bid for an injunction to block the FEC rules. If Spencer strikes down FEC rules on advocacy groups--including contribution limits--the move could open the floodgates for an infusion of high-dollar donations from corporations, unions, and wealthy individuals. That could elevate the importance of such organizations in the final two months of the presidential election.

For more about this case read the Aug. 19, 2008 OMB Watcher Anti-Obama Group Seeks Exemption from Campaign Finance Rules.

In Michigan, there is an effort underway to deny individuals whose homes have been foreclosed on the right to vote. According to the Michigan Messenger, James Carabelli, chairman of the Republican Party in Macomb County Michigan, is "planning to use a list of foreclosed homes to block people from voting in the upcoming election as part of the state GOP's effort to challenge some voters on Election Day." Carabelli told the Michigan Messenger that, "[w]e will have a list of foreclosed homes and will make sure people aren't voting from those addresses."

J. Gerald Hebert, a former voting rights litigator for the U.S. Justice Department and Executive Director of the Campaign Legal Center, told the Michigan Messenger, "I don't think a foreclosure notice is sufficient basis for a challenge, because people often remain in their homes after foreclosure begins and sometimes are able to negotiate and refinance."

The effort seems to target individuals who the organizers believe are most likely to vote Democratic.

The Michigan Messenger reported that according to a report issued last year by the state's Department of Labor and Economic Growth, "[m]ore than 60 percent of all sub-prime loans — the most likely kind of loan to go into default — were made to African-Americans in Michigan." Thus, this is likely to disproportionately affect African-Americans. Voter registration information and previous history indicate that African-Americans largely vote Democratic.

There are also efforts in Ohio to challenge voters who are voting from addresses where the homes have been foreclosed.

Nathaniel Persily, a law professor at Columbia University, told the Columbus Dispatch that, "Ohio is stricter than most states in using outdated registrations as grounds for disqualifying voters. But increasing numbers of outdated registrations increase the possibility of voter challenges in 2008."

According to the Columbus Dispatch, Franklin County GOP Chairman Doug Preisse "didn't rule out challenges before Nov. 4." He told the paper that his party wants "clean, accurate voter lists." The Ohio Democratic Party is organizing a "voter-protection" plan to fight challenges to voter eligibility.

In May of this year, we posted a blog focusing on the Alliance Defense Fund's "Pulpit Freedom Sunday," part of the organization's "Pulpit Initiative," scheduled for September 28, that is asking churches to defy the IRS's prohibition against partisan politicking by religious organizations. ADF is asking pastors to preach sermons which openly support or oppose candidates for elected office. Dozens of pastors have agreed to participate.

In response to this initiative, two Ohio pastors, the Rev. Eric Williams and the Rev. Robert Molsberry, are asking clergy to preach about the benefit of the separation between church and state on September 21.

The Ohio pastors are leading a group of 55 religious leaders who filed a complaint with the IRS asking them to force ADF to stop encouraging pastors to violate federal tax law on "Pulpit Freedom Sunday."

According to the Washington Post, the clergy stated in the claim that, "as religious leaders, we have grave concerns about the ethical implications of soliciting and organizing churches to violate core principles of our society."

According to the Associated Press, the complaint "asks the IRS to stop the Alliance Defense Fund from signing up churches to violate the federal restriction." They also want the IRS to investigate if the pulpit initiative itself violates the law and jeopardizes ADF's tax-exempt status.

Three former top IRS officials have also asked the agency to investigate ADF's actions surrounding "Pulpit Freedom Sunday."

Erik Stanley, ADF's attorney, wrote an article which outlines ADF's viewpoint. ADF believes that the IRS' ban on partisan politicking and electioneering is unconstitutional. "The tax agency's rule is unconstitutional because it muzzles free speech and improperly entangles the state in church affairs," Stanley said.

On Sept. 5 Ohio Southern District Court Judge George C. Smith ruled to allow the Ohio Right to Life Society (ORTL) air advertisements mentioning the name of a political candidate within 30 days of an election. The decision prohibits the state of Ohio from enforcing a state campaign finance law restricting corporate funding of messages that mention a candidate in the weeks before an election (electioneering communications) as it related to the two specific ORTL ads at issue. The judge denied their request to also block enforcement of provisions requiring disclosure of those who fund the ads. ORTL planned to run ads June 2008 through December 2008 on Ohio Senate Bill 174, which would generally ban the practice of human cloning in Ohio. The preliminary injunction decision protects ORTL, allowing them to run these ads while the case is pending.

Earlier this week, we mentioned that American's United Against the Separation of Church and State filed an IRS complaint ($$) against Atlah World Missionary Church in Harlem, New York for engaging in prohibited electioneering. Several videos posted on the church's website and on YouTube show Rev. James Manning, who is African-American and the pastor of the church, making crude and derogatory comments about Senator Obama.

Religious organizations, which are tax-exempt under Section 501(c)(3) of the Internal Revenue Code, are prohibited from promoting or opposing a candidate for political office. A charity or religious organization that violates this prohibition may have its tax-exempt status revoked.

Some of the comments that Manning made about Senator Obama from the pulpit are that he is a "pimp" and a "long legged mack daddy." When speaking about Obama, he also said, "you don't get your campaign started with a big-chested white woman," a reference to the popular Obama Girl YouTube video, which was done without the consent of the Obama campaign. One particularly demeaning comment Manning made was that Obama's "African, in-heat father went a whoring after a trashy white woman. He was born trash."

In another statement from the pulpit, Manning seems to clearly tell the congregation not to vote for Obama. In that statement, Manning says, "I want to say to you, black America, that Barack Hussein Obama is not the one. God has not sent him. He is a diversion from the truth."

To see some of the derogatory comments that Rev. Manning made against Senator Obama, click here and here.

A new program that helps individuals understand the basics of election law and election-related litigation is now available. The Election Law Program is a joint venture between the College of William and Mary School of Law and the National Center for State Courts.

The program includes video lectures, manuals, and readings to serve as "a guide for judges, lawyers, journalists, and others interested in our electoral process."

To learn more about the program, click here.

Many churches are now using the World Wide Web to disseminate their message to large groups of people. As a result, messages that previously would have been confined to the walls of the church and only heard by like-minded individuals are now heard by both supporters and opponents of the message. Federal tax law prohibits a pastor from giving a message that promotes or opposes a candidate for political office. The IRS can revoke a charity or religious organization's tax exempt status for engaging in prohibited partisan politicking.

However, many pastors have been doing this for years without repercussions. Generally, the IRS investigates if someone files a complaint with them. With the messages being disseminated to a larger group of people on the web, the likelihood that the message will be heard by an individual who feels that message violates the IRS prohibition against electioneering increases.

According to the New York Times, Atlah World Ministries in Harlem is being investigated because a video of its Pastor, James David Manning, making derogatory comments about Barack Obama appeared on the church's website and on YouTube. In addition to the derogatory comments about Senator Obama, "Mr. Manning praised Senator Hillary Rodham Clinton and her husband, the former president, for bringing economic vitality to Harlem, but called Mr. Obama the candidate of 'irresponsibility and unaccountability'." As a result of the YouTube video, Americans United for the Separation of Church and State filed a complaint with the IRS.

The IRS has also launched other high profile investigations as a result of information that came to light on the web. They are currently investigating Bill Keller, a Florida televangelist who preached that a presidential vote for former Massachusetts Governor Mitt Romney, a Mormon, was "a vote for Satan." This sermon came to light because the sermon was posted on Keller's website. Also, Americans United filed a complaint against Cornerstone Church in Madison, Tennessee asserting that the Pastor violated federal tax law during a sermon in which the Pastor endorsed three School Board candidates from the pulpit. Americans United was made aware of the incident because the sermon was posted on the Church's website and, as a result, a local newspaper published the comments.

The Alliance Defense Fund, a conservative organization, is fighting back against the IRS by arranging "Pulpit Free Sunday" on September 28, in which clergy members will violate IRS rules by preaching sermons that promote or oppose political candidates.