Washington, D.C.

Richard Land, President, Southern Baptist Convention’s Ethics & Religious Liberty Commission
Robert Tuttle, Professor of Law, George Washington University Law School
Ronald Walters, Director, African American Leadership Institute; Professor of Government and Politics, University of Maryland

Luis Lugo, Director, The Pew Forum on Religion & Public Life

LUIS LUGO: We should know better at the Pew Forum than to schedule these events after a Redskins game. People are dealing with depression typically and it takes them a while to get back into it. In any case, we are delighted you are here. Good morning to all of you, and thank you for joining us today. My name is Luis Lugo and I am the director of the Pew Forum on Religion & Public Life, which is a project of the new Pew Research Center. The Forum is a nonpartisan organization and we do not take positions on policy debates, including the issue under consideration this morning.

It’s my pleasure to welcome you to what we believe will be a very lively and very informative discussion on the political activities of religious organizations. The event coincides with the release of “Politics and the Pulpit 2004: A Guide to the Internal Revenue Code Restrictions on the Political Activity of Religious Organizations.” My candidate for the subtitle was actually “A Guide for the Perplexed,” but I was outvoted on that one. I wanted to reintroduce Maimonides to the American public. (Chuckles.)

In any case, this is a handy little pamphlet in question-and-answer form. It’s a version of something we put out a couple years ago and we wanted to update it, to try to explain in very simple English the relevant law in this area. For anyone who didn’t get a copy on your way in, please pick one up from the registration table on your way out.

As you probably know, Section 501(c)(3) of the Internal Revenue Code exempts churches and other houses of worship from taxation. But in order to maintain their tax-exempt status, religious organizations must refrain from partisan political activity such as endorsing a candidate from the pulpit, for instance. On the surface it all sounds pretty simple, but as with much of the law, it can be complicated and even bewildering to the uninitiated. Indeed, this issue sows perpetual confusion among the very people most responsible for following the rules – the clergy. Every election year, ministers, rabbis, imams and other clergy find themselves wondering what the boundaries are regarding political activity. Can they invite a candidate to address the congregation? Can they hold a voter registration drive or hand out issue guides? Can they endorse a candidate for public office if they do so in their capacity as a private citizen? All the answers, by the way, are in here.

Now, the current bitterly contested campaign season has seen an upsurge of attention paid to this issue. A massive effort by the Bush-Cheney campaign to mobilize religious voters, for instance, has prompted accusations that it is indirectly encouraging churches to violate the rules. And John Kerry and other Democrats’ appearances at predominately African-American churches have led to charges that they have turned worship services into campaign rallies. This, of course, has kept watchdog groups quite busy. For instance, Americans United for Separation of Church and State recently filed a high-profile complaint with the IRS against the Reverend Jerry Falwell, citing his endorsement of President Bush in an e-mail newsletter sent to supporters. Americans United also has asked the agency to look into an event held by a Miami church just last month at which Democratic National Committee chair Terry McAuliffe and former Democratic presidential candidate Al Sharpton appealed to congregants to work to defeat Bush in November.

The issue has also generated attention on Capitol Hill, where a number of bills have been introduced that would scale back or eliminate the 501(c)(3) limits on churches’ political activities. Although they have drawn sizeable support, especially in the House, none have been enacted thus far.

To help us sort out these issues, we are delighted to have with us a very distinguished panel. You have a biographical sketch of each of them in your packets, so my introductions will be brief. Bob Tuttle, who will speak first, is professor of law at George Washington University. Bob earned his law degree at GW, and he has a Ph.D. in religious ethics from the University of Virginia. With his colleague Ira “Chip” Lupu, he also co-directs the Legal Tracking Project of the Roundtable on Religion and Social Welfare Policy, which, by the way, is funded by a generous grant from The Pew Charitable Trusts. Small world, isn’t it?

Although we wanted to have great legal expertise on this panel, we do not wish to limit the discussion to legal issues. We also are very interested in looking at the question from the other side; that is to say, from the perspective of church leaders and how they understand their pastoral responsibilities in this realm. So we are very pleased to have on the panel two people who are intimately acquainted with the on-the-ground perspectives – I said on-the-ground, not underground – (laughter) – perspectives of religious organizations. May not be a bad idea for some of those activities, but we will get to that shortly. In fact, they work closely with the two religious communities – black Protestants and white evangelicals – that are most frequently accused of pushing the envelope too far.

Ron Walters is the director of the African American Leadership Institute at the University of Maryland. He is a regular guest on national television and radio shows and is a frequent speaker to black church audiences. Ron is the author of six books including Black Presidential Politics in America, for which he won the Ralph Bunch Prize of the American Political Science Association. I should add that Ron’s understanding of black presidential politics comes from personal experience as well as scholarly research, as he was the Reverend Jesse Jackson’s deputy campaign manager during Jackson’s 1984 bid for the White House.

We are also joined by Richard Land, who, since 1998, has served as president of The Ethics & Religious Liberty Commission of the Southern Baptist Convention. Like our other panelists, Richard has an impressive academic background that includes a D.Phil. – that’s what the Brits call a Ph.D., is that right, Richard? – from Oxford University and a B.A. from Princeton. An ordained Baptist minister, he is also the co-host of “For Faith & Family,” a weekday call-in radio show. Richard is overseeing a large voter education effort called iVoteValues.com for the Southern Baptist Convention, the largest Protestant denomination in this country.

Thank you so much for joining us this morning. We look forward to your comments and the conversation to follow. As Bob comes up to the podium, I would like to ask all of you please to follow my good example and either turn off your cell phones or put that vibrator mode on, if you would. Thank you so much. Bob.

ROBERT TUTTLE: Thank you all and good morning. I want to thank Luis and the folks at the Pew Forum both for this event and also for putting out yet another great edition of this guide. For the last two years, since its first edition, this has been the main thing that I refer pastors and other church leaders to, and I think that the new version of the guide is even clearer in an area that is very, very complicated, and gives people some assurance that there are some safe ways of negotiating these problems.

I want to talk a few minutes this morning about the legal context – the legal backdrop – to the ongoing debate over the 501(c)(3) limitation on political activity by charitable organizations. I’m going to leave the tax policy and the broader public policy and the theological questions about this issue to others, or for questions.

First, I think it’s important to clarify that the current rule is not in any way required by any reasonable interpretation of the Constitution’s religion clauses. Nothing about the doctrine of separation of church and state, to the extent that there is such a doctrine, would require that religious organizations not involve themselves in political activity. As a matter of fact, I can’t think of a conceivable argument that the Constitution would prohibit such activity by a religious organization. So it is a statutory and a regulatory limit. It is not a limit that arises out of the Constitution, and specifically the Establishment Clause of the First Amendment to the federal Constitution.

So what about the Internal Revenue Code’s restriction? Those who work for its repeal or limitation tend to argue in constitutional language. They use the rhetoric of free exercise or of free speech, and the latter tends to be, I think, quite a strong rhetorical move. You have the specter of IRS agents lurking in the back of churches or other religious assemblies sort of waiting for someone to say the wrong thing or make the wrong move, and all of a sudden they pounce with the full force of the law. That looks like censorship, and not just censorship, but censorship in two of the contexts of which the Constitution has been most protective – political speech and religious speech. This looks like sort of the paradigm for constitutional violation, and you can see this even in the language of the current bill offered by Representative Jones, the Houses of Worship Free Speech Restoration Act. We have houses of worship under assault.

As legal arguments, however, the free exercise and free speech claims are extraordinarily weak. The free exercise claim – that is, that the limitation on political activity by churches violates free exercise – is a very tough argument to make. Even at the height of the law’s solicitude for burdens on religious organizations back in the 1980s it would have been a tough one, but since Employment Division of Oregon v. Smith, it’s almost inconceivable that this rule would be regarded as a burden on free exercise of religious organizations. The law does not target religious organizations or the religious for any kind of special burden. The rule applies to all charitable organizations as defined under Section 501(c)(3) of the Internal Revenue Code.

Even under an earlier version of free exercise analysis, or perhaps the Religious Freedom Restoration Act, which might apply in this context, it’s still a tough argument to make because the burden placed on the free exercise of religion is quite small, at least in terms of the way courts have seen it. What is the burden? Well, the burden is, you can’t use a 501(c)(3) religious organization to engage in political activity – you can’t use a 501(c)(3) vehicle. But you can use any number of other entities for achieving that purpose. Individuals can speak; it’s just a limitation on activity conducted by a specific kind of tax entity.

The free speech argument seems, at least at first glance, to be stronger. We have a government imposing a tax – literally, revoking the tax exemption of organizations that choose to engage in a particular kind of speech; that is, political speech. But the Supreme Court’s free speech jurisprudence offers virtually no support to that argument. As a threshold matter, the court would regard this restriction as viewpoint neutral; that is, it doesn’t single out Democratic or Republican or some other kind of political speech – it applies neutrally to all kinds of political activity. It’s not going to receive the strictest scrutiny that courts would apply.

So the rule instead falls under what lawyers tend to call “time, place and manner” restrictions. Lawyers use that as all one word, although there are three: time, place, manner. The best example would be a parade restriction. Parades are fine, but you can’t have one across the 14th Street Bridge in the middle of rush hour, or more precisely, if you do, you are likely to get arrested. That is not a right of free speech to have that parade in that particular place and time. Or noise regulation in rock concerts – yes, they can tell you how many decibels you can have your amps turned up to. It’s not a violation of free speech – the manner in which you speak can be regulated.

This Internal Revenue Code regulation is precisely such a limit. It says, if you are going to engage in this kind of political speech, you have to do it through a structure other than the one that enjoys the exemption under Section 501(c)(3) of the Internal Revenue Code. So it would fall into this less rigorous mode of constitutional analysis. Well, it doesn’t mean that the government automatically wins; it just means the court’s not going to be as scrupulous in looking at it.

So what, then, would the court do? Well, first, it has to ask whether the government’s purpose in limiting the speech is important, or “non-trivial.” How do we understand this restriction? Is it just the whim of Lyndon Baines Johnson, as some would argue – you know, he had a bad campaign experience and now he’s going to impose this? Perhaps, but there also are some justifications for the current rule. Section 501(c)(3) is unique in its treatment of exempt organizations for one special purpose: those entities created under 501(c)(3) get donations that enjoy charitable deductions. In other words, anybody who is a donor to a 501(c)(3) gets to deduct their donation from their own income tax. That is a benefit not enjoyed by donors to any other type of exempt organization under the Code. So the question then is, is there any reason that the United States Congress would want to single out 501(c)(3) organizations from other exempt organizations with respect to political activity? The answer is, at least plausibly, yes, because we don’t want to give a tax subsidy – that is, grant income tax deductions – to those who contribute to political campaigns. It’s a policy judgment; it may be good or bad, but it’s one I can’t see the court regarding as trivial.

Then the court would look at the question of the relationship between the means used to effectuate the purpose and this purpose of eliminating tax deductions for political expenditures. Is that a close enough link that we think that Congress was being reasonable in choosing this restriction to reach that end? And again, the answer is likely to be yes. The restriction is not too broad; that is, it doesn’t impose on 501(c)(3) organizations an obligation never to talk about political issues or never to have individuals serving on their boards or as officers who engage in political conduct. Both of those would be vastly over-broad. This is targeted to activity of the organization that enjoys that exemption.

Third, and most important in this analysis of time, place and manner, is the question of whether the law affords reasonable alternative avenues for speech. In other words, can the people that are restricted by this rule still engage in that speech activity? Well, what are the options? It’s not simple, but if you are a religious organization and you have an abiding passion to buy an ad in a paper criticizing George Bush, well, you just have to make sure you don’t do it through the forum of the 501(c)(3) organization. You have to set up some other kind of entity, a 501(c)(4), and that 501(c)(4) can set up a political action committee. It takes a little bit of time – it takes maybe an hour in your tax lawyer’s office – but it’s not an incredible burden to do it, and if that’s the case, then all you have to do is make sure that the money that flows into that political action committee doesn’t come out of the coffers of your religious organization, and anybody who is making a contribution to that PAC isn’t induced to do so with some promise of tax deductibility. It’s relatively simple to do. Look, any time you are talking about tax, simple is a relative term. (Laughter.) But still –

Fourth, there is no evidence that the application of the standard has been discriminatory. All right, so we think there is a decent purpose for doing this, and the way the government has been going about it has not been proven to be discriminatory. In 2000, both judicial and legislative findings – the Branch Ministries case and the Joint Committee on Taxation – found that enforcement had not been discriminatory in practice. These are tough things to search out because there are all kinds of implications about what the IRS is saying to someone that never makes it into the official record. But nonetheless, the point of discriminatory enforcement hasn’t been proven.

More importantly, I think that when you look at the structure of IRS enforcement, discretion about which organizations to go after is cabined – it’s quite limited. Any movement toward an inquiry has to go through the highest offices of the exempt organizations office of the Internal Revenue Service. I mean, that requires not just letting an agent out in some field office decide when to, you know, lean on a church, but that if the IRS is really going to get involved in an investigation, they have to go through a senior official in Washington. The process is centralized, and if such a process is started, both by statute and by regulation, the means of conducting such an inquiry are incredibly circumscribed. Churches have a great deal of protection in the course of Internal Revenue investigations. So the concerns about overly discretionary or discriminatory enforcement seem not to have been proven, although that is, of course, an empirical matter.

The only significant constitutional implications of this rule, I think, are those found in the Establishment Clause, and not so much with the rule as it exists now, but with a proposed change to the rule, one that would exempt religious organizations from this restriction on engagement in political speech. On its face, the proposed rule purports to single out religious organizations for a special benefit. Religious organizations, but not other 501(c)(3)s, could engage in political activity and do so with tax deductible donations. Now, Representative Jones’ bill – the current version – is a bit more limited than that, but that is at least a conceptual way of understanding this proposal. This would be a benefit, as I said, not shared by other tax-exempt organizations.

So the question is, does this benefit look like a cash subsidy to religious organizations for their participation in political activity? Courts, both at the state and federal level, tend to give legislatures pretty significant discretion in determining when those kinds of benefits will be seen as a reasonable attempt by the legislature to remove a burden on the religious liberty of an organization. In other words, if the legislature sets out to remove what it feels to be a burden on religious activity, even if that burden really isn’t a constitutional burden, the courts tend to give the legislature deference and don’t call such provisions establishments.

I think this is a close call. The best justification might be that an exemption for religious organizations is the best way to avoid entangling government agencies with the ongoing religious life of the congregation. Back to the specter of an IRS agent sitting in the back of a church, you know, just jotting down how many times they have done something that looks like it’s political. We might tend to see that as an entanglement of government in religion.

I don’t know, I think it’s a close call. The claim of avoiding entanglement is undercut to a great extent by the IRS’s very loose enforcement standards in this context. But I do think that that question – whether an exemption for religious organizations violates the Establishment Clause by conferring an improper benefit, or whether that exemption in fact removes the problem of entanglement – I think that is the constitutional question that remains for this. I don’t think it’s a very close call on the free speech or free exercise questions. Thank you.

MR. LUGO: Ron Walters.

RONALD WALTERS: Thank you very much, Luis.

I obviously am going to leave the legal issues where they stand and talk a little bit more about some of the political implications. Luis already referred to something that I am going to mention again, but let me just say that, for those who are not aware, there is something else that connects me to this forum, and it is a study funded by Pew, on the Public Influences of African American Churches. This study, of course, had over 1,900 ministers in a national survey and 23 city profiles. My shop was pleased to do the one for the District of Columbia, looking at the role of religion and churches in political life. That study is essentially now completed. The data is gathered; the books are coming out. Duke University Press is getting ready to begin to usher them forth. And so I was pleased to participate as a board member and a researcher in that study that has taken us now some three years to complete.

Let me say that in normal times, the black church, as most people know, has been a part of the political mobilization of the black community, and the reason for that, of course, is relatively simple. During the slavery days, the church really was the only institution that was allowed to flourish, and because it did, it took on 180 degrees of activity with respect to various aspects of the enhancement of African-American life. Politics, of course, was one of those, and so as the political participation of blacks increased, so did over time the role of the church increase. And of course we have come now to the current election cycle where, in my judgment, the role of the African-American church is more politicized than ever before.

Let me just read you one or two things from the Pew study. The question is, “Should black churches be involved in politics?” The response to that – those who strongly agree and agree – was 78 percent. That is not, again, the usual. There was a much higher response to that in a previous study done by Lincoln and MIA – it was 91.6 percent. So we have got some decline in those who feel – and these are blacks – that the church should be involved in politics.

Another question is, “In the last two years, how often have political candidates or elected officials delivered speeches or remarks within your worship services?” And this, of course, is counterintuitive because what it says is more than 10 times – 5.4 percent; 5-10 times – 10.6 percent. So all together, we are saying that only 16 percent of the respondents claim that in the last two years politicians or candidates have delivered speeches in their churches. One wonders of course why that is so low.

These responses, of course, are particularly in the political realm. Let me go to one final response that I just plucked out of here. “How regularly has your congregation had the following involvement with civic or political groups?” And it’s giving money, for example, frequently – 13.8 percent, frequent; 39.8 percent, sometimes. So giving money is one of the ways that the churches have been involved with civic and political groups.

The other big one that sticks out here is attending meetings – that is 37 percent. Beyond that, of course, there is one thing – another question I want to refer to. “During the last 10 years, has your congregation engaged in any of the following activities? Helped in voter registration drives?” – 67.7 percent, and “Given rides to people to the election polls?” and that is 51.7 percent. Those are uniquely tailored toward political activity in various communities, and you can see that it’s a relatively strong pattern of participation on the part of African-American churches.

Within this election cycle, my seat-of-the-pants impression is that black churches are not connected as strongly as they have been in the past, not only from sort of the rough empirical evidence that we have here of a decline in that, but also by my sort of eyeballing this process. I have been out in the country doing voter mobilization workshops from one end to the other, just very recently for the Dallas Council of Churches. They had a big conclave two weeks ago – 84 ministers in Prince George’s County. They all seem somehow disconnected from what is going on in the political season this time around. We try to account for that.

One thing, of course, which Luis has already referred to, is the IRS challenge. The IRS is uniquely in an activist mode, and one wonders, you know, where that comes from, especially if, as Bob Tuttle said, that it really takes a decision at the top of the bureaucratic latter somewhere in this town in order for the IRS to begin to raise what are essentially political questions with churches. So one wonders why all of a sudden the IRS is being unleashed on black churches. The First Baptist Church in Tampa, Florida, was one of the most recent of those churches.

In addition to that, I would say that it could be linked to something that we feel very strongly about in the black community, which is voter suppression campaigns. In Florida, Bob Herbert of The Washington Post recently wrote about Florida state troopers intimidating elderly black voters, going into the heart of the church community and talking about, and trying to root out, so-called voter fraud. This, of course, is tied to another series of articles that I have seen about the activities of Attorney General John Ashcroft, who has been associated since the 2002 election cycle with so-called voter integrity programs. Voter integrity programs have ostensibly the same sort of objective of rooting out voter fraud. The impact, of course, and the intent, one suspects, is to intimidate black voters, and if anybody would want me to expand on that, I would be glad to do it.

There is a third dynamic which is not associated with the administration or the Republican Party (I think that is the first time I have mentioned the Republican Party, but I mention them because they are uniquely involved in the voter suppression campaigns around the country that are directed at black voters): it’s Democrats – the new dynamic has something to do with the 527s that have come into the picture and that are all of a sudden raising substantial amounts of money and are directing voter registration and voter turnout activities, and a lot of that they are directing in the black community.

This mainstreaming of voter registration and turnout methodology reduces the role of the black churches. Why do I say that? Because essentially, what they are doing is using sort of tried and true methodologies of campaigning – arming canvassers with palm pilots and blackberries, sending them out to communities to identify unregistered black voters and try to persuade them to register and then eventually to vote.

The black church of course has had a very strong role in that in the past, and so to the extent that now these very powerful financially laden organizations have come into this picture, it has supplanted a very important ingredient. Now, as far as I am concerned, I think that is a danger to Democrats. It’s a danger to Democrats because you can’t turn out black voters with palm pilots and blackberries. They just don’t turn out that way. They turn out essentially because they have heard the voice of somebody who is credible in their communities – the Jesse Jacksons, the Al Sharptons. I don’t care how much people don’t like them, the fact is black people respond to them because they have a message that resonates with the culture and the condition of the black community. So now if you shove these people to the side or give them minimal roles, it means that you are endangering the whole process of political participation and eventually turnout.

The last point I will make before I sit down is that I think it is true that when one looks at the Bush administration, that it is trying to make, I think, a lot more of this relationship between religion and politics. HR-235, of course, has been already mentioned. I think essentially when I first looked at it and talked to some of the members in the Congressional Black Caucus, they were very wary because they said, “Well, this is not really aimed at us. This is aimed at turning on white evangelicals.” And I said, “Well, all right, that changes my mind,” because I thought that if it was – I had talked to some African-American ministers and it seemed to me that they were also fishing around for some legal basis for their political participation in this highly politicized atmosphere.

And the tip-off on 235 was Speaker Denny Hastert pushing this through the House. And so when he did, members of the Congressional Black Caucus said, “Uh-oh, this is not for us.” It was a very aggressive push, but it didn’t go anywhere – hasn’t gone anywhere so far. The other thing is that when you look at the list of co-sponsors, and the prime sponsor, it’s really very clear that this is not something aimed necessarily at the black church.

Nevertheless, I think that the Bush administration has focused on black churches from the very beginning, essentially, through the faith-based programs. The critique of course initially was that they would have come to have some relationship to political participation, and if one looks at some of the things that have been done – the memorandum that was sent from one of Karl Rove’s staff persons into the black church community in Philadelphia instructing people, advising people of what sort of activities to do, by when. I have seen the memorandum. It’s really a very interesting piece. So that there is some focus on the black church by the Bush administration.

And that leads to my conclusion, when one takes all of these into consideration and sums them up, that in this cycle, the black church is more highly politicized than ever before.

MR. LUGO: Richard, thank you so much for catching the red-eye from Los Angeles to join us today. I hope you are awake.

RICHARD LAND: I am. In fact, I caught the red-eye because I wanted to speak where I spoke yesterday and I wanted to speak here. And where I spoke yesterday was the Korean Christian Coalition. Representatives from about 4,000 Korean-American churches who are part of a coalition to get the North Korea Human Rights Act passed. In other words, Asian-American Christians – evangelical Christians – and judging from the meeting, some charismatic evangelical Korean Christians, I think they were – sometimes it was Korean, and sometimes it was ecstatic utterance, I’m not sure, but it’s an interdenominational coalition. I don’t speak Korean and I don’t speak ecstatic utterance either. I’m one of those non-charismatic evangelicals.

The reason we are having this forum, the reason this is being discussed so much is that there is an increasing intersection between religious conviction and the moral values that are informed by religious convictions and public policy. And how does that get decided in this culture? It gets decided through the political process. And America, by every indication, is getting more religious, not less religious, and is driving all of the sociological models of modernity completely batty because we are not behaving the way modern cultures are supposed to behave.

One of the oldest truisms of modernity is that the more modern a culture, a society, gets – the more impacted by modernity it is – the less religious it becomes. That certainly has proven to be true in Western Europe, it certainly has proven to be true in the United Kingdom and it certainly has proven to be true in Canada. But it is not true in the United States. In fact, exactly the opposite is the case, and the United States looks a lot more like the rest of the world when you start surveying this culture about the role that religion plays in the lives of individuals and the lives of families and the lives of communities, and in what they would want it to play in the life of a culture, and how it impacts how they deal with public policy issues.

Now, when Mr. Tuttle got up and spoke, I was surprised by his first statement, which was that the IRS regulations had nothing to do with the First Amendment, and I thought, wow, I like that. (Laughter.) So that means if it has nothing to do with the First Amendment, then Congress can change it, and the Supreme Court is not going to mess it up. But then he came back at the end and said that it actually might have something to do with the Establishment Clause of the First Amendment. So I would like for him to amplify that later because I was comforted, and then he seemed to take back some of the comfort at the end. (Laughter.)

Let me get my cards on the table. As a Southern Baptist evangelical, we support the Jones Bill. We think that the government shouldn’t be deciding whether churches can get involved in public policy issues to a political extent – to a partisan extent. Having said that, we – The Ethics & Religious Liberty Commission – do not believe that churches ought to be endorsing candidates. We don’t think that churches ought to be getting involved in partisan activity, but we think that ought to be a decision made by the church, not by the government.

So our position is that we discourage churches from engaging in that kind of activity. The history of political parties is that they will use and will exploit anyone that they can exploit for their purposes, and that includes churches and it includes religious organizations. I believe that churches and religious organizations and their pastors have an obligation to try to protect their people from being exploited and used and manipulated by political parties who, by their very nature, will exploit, use and manipulate for their ultimate purpose, which is to gain, attain and keep power for their purposes. And those purposes are often at odds with the purposes for which people of faith are involved in the political process and in the public policy process.

So even if the Jones Bill passes, we will continue to discourage Southern Baptists and other evangelical churches from getting involved in a partisan way in public policy, and certainly refrain from endorsing candidates. What we have been saying for years and years is that Christians ought to be registered to vote, and they ought to be informed about where the candidates stand on the issues, and they ought to be looking for candidates that endorse them. They shouldn’t be endorsing candidates; they should be looking for candidates who endorse them, who endorse their values, who endorse their beliefs, and who endorse their convictions.

Now, we currently have an 18-wheeler, which used to be used to sell merchandise from the Charlie Daniels Band – after all, we are based in Nashville – and it is now the iVoteValues.com Express. It’s part of a year-long campaign to heighten awareness of people in the Southern Baptist and evangelical community, that they ought to be registered to vote, to help them get registered to vote, to help them get informed on the issues, and then to encourage them to vote their values, their beliefs and their convictions.

One of my trustees is a pastor in Knoxville, and he had some deacons in his church (and you understand pastors take deacons very seriously in Baptist churches) who were upset that the 18-wheeler was coming to their church because these folks were self-described yellow-dog Democrats and they suspected that this was not a partisan-neutral situation. Well, the pastor took them on a personal tour of the 18-wheeler, the iVoteValues.com Express, and when he finished and they went through all the interactive activities, they said, “This is fine; this is great. No one can object to this. This is totally nonpartisan.”

It is encouraging Christians and others – anyone that will sit still long enough for us to give them a registration form or to encourage them to download a registration form for their state, we’re going to help them get registered to vote. We’re going to give them information where they can go in nonpartisan venues to get information about where the candidates stand on the issues. We will do what we’ve done for the past several presidential election cycles. We will be printing up platform comparisons of the two major parties, letting them, in their own words, describe where they stand on a whole host of issues – somewhere between 30 and 40 issues where the parties have laid out the platform and the planks in the platform upon which they are campaigning. So we’re not even describing what the two-party platform positions are; we’re letting the platforms speak for themselves. Those have been very popular. We will be printing a significant number this year and we’re encouraging folks to order them from iVoteValues.com or FaithandFamily.com.

We also, on our iVoteValues.com Web site, have a list of the legal do’s and don’ts. Every Southern Baptist church is autonomous. There is no vertical structure in Southern Baptist life. Sometimes there’s not even any horizontal structure in Southern Baptist life. (Laughter.) The reason it is called a convention and not a church or a denomination – it’s not called the Roman Catholic Church; it’s called the Southern Baptist Convention – is because it’s a convention of churches. It is a voluntary association of churches. Each church owns its own property; each church calls its own pastor; each church decides for itself how much, if any, it is going to contribute to the Cooperative Giving program of the Southern Baptist Convention, and all I can do is seek to serve and suggest things to churches. I can’t tell any Southern Baptist church to do anything.

And so Southern Baptist churches are free to do what they wish to do, and they remind me of this on a regular basis, but what we have done is we have tried to construct a Web site of do’s and don’ts and, with our legal counsel, we’re making it very clear to the churches, in seeking to serve all Southern Baptist churches. To use a football analogy, which I know will be painful to some, we encourage them to stay not just in the sidelines, but to stay within the hash marks. Now, if individual Southern Baptist churches want to take off and run as close to the sideline as they can, that’s up to them and their general counsel and their legal advisors. We’re going to stay inside the hash marks.

And staying inside the hash marks, preachers can preach on moral and social issues and they can encourage civic involvement. Can they endorse candidates on behalf of the church? No. Can they engage in voter registration activities that avoid promoting any one candidate or political party? Yes. Can they distribute educational materials to voters such as voter guides, but only those that do not favor a particular candidate or party and that cover a wide range of issues? Yes. Can they permit the distribution of material on church premises that favors one candidate or political party? No. Can they conduct candidate or issue forums where each duly qualified candidate is invited – this is where I think there has been some concern about some of the activities of some churches – and provide an equal opportunity to address the congregation? Yes. Use church funds to pay fees for political events? No. Allow candidates to solicit funds while speaking in a church? No. Sermons on moral and social issues? Yes. Endorsing or opposing political candidates? No. Educate on political process and political social legislative issues? Yes. Encourage members to voice their opinions in favor of or in opposition to certain legislation? Yes, as long as that’s not a primary activity in terms of your overall ministry. Campaign for candidates? No. Discuss biblical instruction pertaining to moral and cultural issues such as abortion and same-sex marriage? Yes. That’s part of the free exercise of religious faith and we certainly can do that.

And then the congregants have to decide for themselves. We believe everyone ought to vote their values, ought to vote their beliefs, ought to vote their convictions, and we have to leave it to each individual person and their own conscience to decide their convictions, and to determine which convictions are going to take precedence in a hierarchy of values if they’re forced to choose, for instance, between two competing values. Nothing is ever perfect in an imperfect world, and so you may have a candidate that agrees with you on one issue but disagrees with you on another issue, and then each person has to decide for themselves what that hierarchy of values is.

I can’t leave without really opening up a can of worms, so let me just do that. There is an impression that President George W. Bush has brought an unprecedented amount of “God talk” to American presidential politics and to the American presidency. That is factually, demonstrably untrue. And anyone who wants to challenge that statement could just go to Paul Kengor’s National Review article online, or in a more permanent form, his book, God and George W. Bush. Dr. Kengor, who is a professor at Grove City College and is an historian, has done his homework. During the Clinton presidency, Bill Clinton mentioned Jesus, Jesus Christ, or Christ in official presidential speeches 41 times. George Bush has done so 19. In fact, he documents that in one week, the one week prior to the 2000 election – just one week – the sitting president, Bill Clinton, the sitting vice president, Al Gore, and the sitting first lady, Hillary Clinton, managed to speak in more churches than George W. Bush has attended or been to speak at in his entire presidency.

It seems to me that there sometimes is a little bit of a double standard, that it’s okay when Bill Clinton uses the Sermon on the Mount in a public address to say that it’s a Christian duty to work for a certain piece of legislation, but when George W. Bush says that we are here to do God’s will on earth, which is what Bill Clinton also said – and it’s also what John Kennedy said in his inaugural address – that raises heckles. It may be that it’s not the religious language or the invocation of religion that is so objectionable; it’s what George W. Bush is doing with it, how he’s applying it, and if that’s the case then you ought to disagree with application and not say that it’s some unprecedented challenge to separation of church and state.

MR. LUGO: Thank you, Richard.

All right. Thank you for those presentations – quite a bit to think about and discuss. Bob, perhaps I should allow you to respond to Richard and straighten him out in this First Amendment stuff. Do these IRS regulations have something to do or nothing to do with the First Amendment?

MR. TUTTLE: I’m not a Southern Baptist, I’m a Lutheran, and we take pride in speaking in ways that are self-contradictory. (Laughter.) It’s worked for hundreds of years; why not continue? But this time I think there is a difference. When I started out I said that the rule as written does not implicate the First Amendment because the rule as written applies the limitation to all 501(c)(3)s; it doesn’t single out religious organizations. If the bill before the House simply removed that restriction, then it wouldn’t implicate First Amendment concerns, particularly Establishment Clause concerns. The only reason that it may raise – and I don’t know how much it does; it’s a tough call – Establishment Clause concerns is because it singles out religious organizations from all 501(c)(3)s for special treatment in this respect. So that’s the distinction.

MR. LAND: I appreciate that clarification, and I would have no problem with removing the restriction on all 501(c)(3)s. I think the reason that the Jones bill just deals with churches is the budget hawks in the Congress were saying, if you do that it will increase the deficit even more.

MR. TUTTLE: But that’s always a test – we’re figuring out whether something may violate the Establishment Clause. If you can’t fund neutrally and you single out religious –

MR. LAND: And then the question becomes whether or not giving a tax deduction is funding, and that’s, I think, a question that hasn’t been – it’s a benefit; it’s not direct funding. It’s not even indirect funding. It’s just giving people – the minority of people who itemize – and we sometimes forget the fact that 70 percent of Americans don’t itemize. Only about 30 percent of American households itemize their deductions.

MR. TUTTLE: I think that’s true, but the court, in Texas Monthly v. Bullock back in the 1980s, seemed pretty clear that tax privileging of religious organizations could constitute a benefit in violation of the Establishment Clause, so it’s at least within the realm of possibility.

MR. LAND: Well, with the Supreme Court anything is within the realm of possibility.

MR. LUGO: Thank you. Just to touch on something else in this Jones bill here – Ron, I think I heard you correctly here, and as I hear you talk about the concerns of African-American churches, with the IRS breathing down their necks, I hear some of the same concerns among white evangelical churches. So had there been an attempt to be bipartisan on the Jones bill and a reaching out to the Congressional Black Caucus early on to fashion a legislation that would grant more protection to churches in their political speech, did I understand you correctly that, at least in principle, the Congressional Black Caucus would have been there?

MR. WALTERS: Yes, I think in principle. Actually, I first found out about this bill in one of these forums with black ministers; they raised it. And one of the people who was close to it is the Reverend Anthony Muse, who is a Democrat in Prince George’s County, a pastor of a 3,000-member church and a former candidate for office. As a matter of fact I think he served at one point in the legislature.

So, yeah, I think that it might have been. But let me just be clear: I don’t think for a minute that this bill has an economic motive. I think it has a strict political motive. And I think that this whole question of looking at the tax status of churches really is something that has a chilling effect. Now, we talked about Southern evangelicals in this sense. Bipartisanship, to me – or at least fairness, to me – would have been the IRS actually interrogating some of these organizations. But I have not yet seen the newspaper articles that would suggest that either the Justice Department or the IRS has gone after them with the same vigor. Maybe they have and I just don’t know it.

MR. LAND: Well, that would be real news to Ralph Reed, who had a huge lawsuit against him with the Christian Coalition, and they finally won but it built swimming pools for a lot of lawyers in the process. And I can tell you that evangelical churches feel that they have been harassed by the IRS, and they complain that they get harassed in ways that African-American churches don’t, and then African-American churches seem to be complaining that they get harassed in ways that white evangelicals don’t. Perhaps they need to get together and compare notes and figure out who the common enemy is: government regulation and intimidation through the IRS. And I think that –

MR. LUGO: But if that was the case, Richard, then why – I mean, it does raise the question – why was there not a reaching out to the Congressional Black Caucus and others? Or maybe there was. I know you were intimately involved in the Jones legislation. It seems to me that if you put the white evangelical and the black Protestant coalition together you could punch that baby into the end zone.

MR. LAND: Well, first of all, Luis, I was not intimately involved in those negotiations. That’s not really my role. My role is to advise Southern Baptists about whether this is something they ought to look at and give them information on how to look at it.

We do support the Jones legislation, but looking at it as an outsider, it seems to me that there is an increasing disconnect between the Congressional Black Caucus and an increasing number of African-American churches and pastors. There was much more receptivity to the Jones legislation among African-American pastors, and much more receptivity to the faith-based initiative, than there was from the Congressional Black Caucus.

MR. LUGO: You’re into opening cans of worms this morning. That’s the second one. Ron, you really should respond to that.

MR. WALTERS: Well, I was just going to say I wouldn’t put Ralph Reed’s problems in the same category as some of the black churches because he has quite a different posture there, and of course they have continued, as I understand it.

But I just think that, yes, there would have been, I think, some support for this from the black churches if it had been cast a little bit differently. But I don’t think we can ignore the political effects of all of this. I think if we do – you know, one of the things we have become good at recently is the artful coloring of all of this stuff, which has a political motive. And I think when you get down to brass tacks, the faith-based philosophy was a philosophy which appeared good on its face, which was a carryover from the conservative public policies all the way back to Ronald Reagan, that attempted to try to shift social spending onto the churches. The churches have said, look, we can’t do this. There is still an attempt to try to do it. But the real motive underneath this really is to spin off a very important segment of the Democratic Party’s constituency and win elections, and I don’t think it goes much further than that.

MR. LUGO: Thank you.

Well, let’s turn to the audience. First, as is our regular custom, if there are any members of the press we want to let you have the first crack at this.


DENNIS CROWLEY: I got your press packet here and in it there’s a report talking about religious landscape by partnership. It says Latino Catholics and black Protestants are overwhelmingly Democrat – 71 percent of black Protestants are Democratic, and 61 percent of Latino Catholics. Only 11 percent of black Protestants are Republican, and 15 percent of Latino Catholics. In putting together this survey, did anybody come up with any idea about the disparity here – why people lean so much to the Democratic Party?

MR. LUGO: Well, let’s put the question to Ron. In fact, let me just add, also coming out of our survey, that on many of the social issues, from abortion to gay marriage, which have driven white evangelicals to the Republican Party, the African-American church – particularly on the gay marriage issue, less so on the abortion question – seems to line up pretty closely with white evangelicals. So the question then becomes, why has there not been a similar drift on these values questions into the Republican Party?

MR. WALTERS: Yeah, obviously on that last issue, as a matter of fact it may be even stronger than some of the evangelical churches. I just think it’s a very simple issue of similar socioeconomic circumstances. I don’t know how many of you saw the op-ed piece in the Post the other day by Marc Morial – president of the National Urban League – calling for a presidential debate on urban issues. When you look and listen to the rhetoric in this campaign season, one of the things that people are not talking about are those issues. I had the occasion to remind one of the ministerial groups that I talked to that their voice on issues of poverty and social need – homelessness, housing, things like that – is uniquely silent. They have also been politicized in this process, and as a result of it, they’re not speaking to a lot of these issues.

But there is a no mystery as to why the blacks and Hispanic vote is like this, because historically Democrats have paid more attention to these issues.

MR. LUGO: Thank you. If you could please identify yourself – I forgot to mention that. Yes? The 40-yard line there – I mean, the fourth row. (Laughter.)

MIKE MIYAZAWA: My name is Mike Miyazawa. I have two short questions for Mr. Tuttle and Mr. Land.

Mr. Tuttle, can 501(c)(3) organizations make contributions to 527s without losing tax-exempt status? And, Mr. Land, what is your response to the remark by General Boykins, “My God is better than his,” and to the fact that he has not been disciplined in any way?

MR. LUGO: Okay, Bob, how do 527s fit into this mix and what do churches and their political contributions have to do with them, if anything?

MR. TUTTLE: A 501(c)(3) organization cannot make a contribution to a 527 or make any other expenditure for partisan political purposes. So the answer is simply no.

MR. LUGO: So no matter what the vehicle, whether it’s political parties or 527s, you can’t do it.

Richard, on General Boykins?

MR. LAND: Well, I wouldn’t say what he said the way he said it, but this is a free country and you do have First Amendment freedoms, and those extend to all citizens. And I’m assuming as a general officer he serves at the pleasure of the general of the Army and the chairman of the Joint Chiefs of Staff, and I would assume that they decided that he was still a valuable officer and was to be retained. I don’t know what conversations took place in private.

MR. LUGO: Richard, more broadly, since this raises the whole question of the Bush administration and Islam, I have heard public comments from white evangelical leaders who have, in fact, criticized the president for perhaps being too soft, talking about Islam as a religion of peace and so forth. Is this not an area of potential divergence between this president and at least substantial elements of the evangelical community?

MR. LAND: Well, first of all, the Kengor book has a whole chapter on this, by the way, in which George W. Bush has been consciously more inclusive in his “God talk” than any previous president, mentioning mosques and temples in public pronouncements, and this is even before 9/11. Since 9/11 it has increased.

I personally think that that’s a good thing. I can’t speak for all evangelicals – no one can – but I think it’s a good thing. I think that he’s the president of all the people and we ought to affirm the right of people to participate in the American body politic and public policy in this society regardless of their religious faith or lack of religious faith, and I think the president has done an awfully good job of being inclusive in that regard.

He does receive some criticism from some evangelicals for that. He hasn’t from me except on one occasion: when he was asked the question in London about whether Muslims and Christians worship the same god and he said yes. And my response to that was that I’m very grateful that he’s a man of religious faith and he brings his religious faith to bear on public policy, but he’s commander in chief, not theologian in chief. And as an evangelical Christian, I believe that Jews and Christians worship the same God but that Allah is not the father of Jesus Christ.

MR. LUGO: There’s another instance in which I’ve heard you criticize the administration recently, and it pertains to this topic. It’s on the question of the use of church directories. Ron alluded to communications to members of churches. Could you briefly comment on that?

MR. LAND: Yeah. I’m not normally contacted by Reuters but I was on this occasion. They called and said, “We have in our hands a copy of a directive from the Bush-Cheney campaign asking volunteers to send in their church directories to either the county headquarters or the state headquarters. What is your response to that?” And I said, “I’m appalled. I’m appalled and irritated, and I think that this is a very dangerous thing. It shouldn’t be done. This is a giant step too far.” And I issued a press release in which I said that this was a violation of the body of the church, it was an attempt to exploit the church, and that if I were pastor of a church – and by the way, I have encouraged pastors to do this, to get up in the pulpit and say that if anyone wants to give your church directory to someone outside the body of the church for any reason, whether it’s Amway or whether it’s the Bush-Cheney campaign, it is a violation of the body of the church and it is a violation of the privacy of every individual in that church directory, and I’m asking you as your pastor not to do it.

Now, it’s been interesting the response I’ve gotten from within Southern Baptist ranks. The response has been about 2-1 favorable to the position I took. Interestingly enough, to the best of my ability to discern – and of course that’s sometimes difficult with emails; it’s a lot more difficult with emails than it is with faxes or with letters – within my ability to discern, not one pastor has disagreed with me. All of the one-third who disagree with me have been lay people. Not one single pastor has disagreed with me in thinking that this is not something to distribute. Absolutely resist it.

MR. LUGO: Yes?

ANTHONY PICARELLO: Anthony Picarello from the Becket Fund. I wanted to direct my comments to Dr. Tuttle.

As you may know, Dr. Tuttle, we have a Web site dedicated to this issue, freepreach.org, and we take different positions on the constitutional issues. I don’t want to go on at length but I wanted to raise a couple of things very briefly. One, I was hoping you could say a bit more about the kind of Establishment Clause claim that someone subject to this sort of prosecution, if you will, could assert. In other words, for all the reasons that singling out that burden for deregulation might survive Establishment Clause scrutiny; similarly you might have an Establishment Clause claim.

Also, picking up on a comment that Dr. Walters made, there is a chilling effect concern here, which raises issues under the Due Process Clause and Free Speech Clause as a matter of vagueness. I mean, we wouldn’t probably all be here if the rules were crystal clear. The IRS has gone so far as to provide examples about situations that rarely exist. You know, what happens if the pastor pats his head and rubs his tummy at the same time – that sort of thing. But what about the concrete example where a pastor gets up and says, for example, “We as Quakers are so opposed to war that I as your Quaker pastor – if you will – do not believe that any Quaker in good conscience could vote for George W. Bush.” That’s the concrete particular circumstance – actual preaching from the pulpit – that the IRS has actually gone to pains to avoid addressing in its examples and that creates a circumstance of ambiguity that – again, getting back to Dr. Walters’ comment – allows nongovernmental organizations to enhance the chilling effect, even if the IRS has been one hundred percent principled in its enforcement. And again, there are debates on both sides of that question. But this is the sort of private-sector dimension that exploits that ambiguity.

Of course, we have differences in the free exercise and the free speech issues, but I won’t get into that.

MR. LUGO: Thank you. That’s a very helpful question.

MR. TUTTLE: Thank you, Anthony. As you know from our previous conversations, I have great respect for your analysis of these issues and your work on First Amendment issues more broadly. I agree with you that this is a mess. I mean, I don’t think anybody can read the 150-page continuing education thing that the IRS puts out for lawyers who have to advise on this, where they do try to go through virtually every example, and come to any other conclusion but that this is a mess.

So then the problem is, what do we do about the mess? Do we encourage sort of the ambiguity in which, yeah, there’s some fear, there’s some chilling out there, but there aren’t a lot of enforcement actions and that’s really the status quo. There’s some virtue to that. We don’t have to make some tough questions about the public FSC that we would otherwise.

Luis suggested that I not talk about this, but I have it –

MR. LUGO: Open the can of worms. Go ahead, Bob. You go ahead and do it.

MR. TUTTLE: (Chuckles.) I think there is one simple resolution to this, and that’s to eliminate the deductibility of charitable contributions. You treat all exempt organizations then the same. The IRS doesn’t need to monitor and the IRS doesn’t need to figure out exactly at what point somebody has stepped over a line, a line that is incredibly difficult to monitor. And indeed, I think you’re right; monitoring raises the most serious entanglement questions of any context. I mean, we’re usually worried about entanglement in the context of schools. This is somebody monitoring the content of religious worship. You don’t get much worse than that.

So I agree one hundred percent. The question is the solution. Either you simply apply this rule of exemption to all 501(c)(3) organizations, which, as Dr. Land said, raises some questions about the ability of the government to pay for that, or you do the one thing that does save the government a good chunk of money – you simply eliminate deductibility of charitable contributions. I think that is not a particularly attractive option, but I think it’s the only one that allows us to avoid making these tough judgments.

MR. LAND: I’ll make a prediction: in your lifetime and mine that’ll never happen. (Laugher.)

One thing that hasn’t been mentioned, and I think it is a mess and I think it does need clarification, and that is that there are nongovernmental groups that do try to use the IRS as a boogeyman to scare churches, because if you stop and think about it, there haven’t been very many cases where the IRS – what is it, two?

MR. TUTTLE: Just two or three.

MR. LAND: Two or three where the IRS has actually gone after a church, and one of them just sort of double-dog-dared them, asked for it, begged for it, painted a target on their chest and said, please shoot us. I mean, you’re sort of asking for it when you run a full-page ad in the paper the Sunday before the election saying, “It is a sin to vote for Bill Clinton.” (Laughter.) I mean, that’s sort of asking for it, you know.

MR. TUTTLE: Does it say “Paid for by donations to the church”?

MR. LAND: Yeah, right. And they only lost their letter for one year for doing that. So I think there are organizations that have a vested interest in trying to suppress what they perceive as political activity they don’t like from certain segments of the population. Brother Walters has talked about some attempts to suppress African-American churches. I mean, I don’t think Barry Lynn is real happy about evangelical churches doing what they do, and I think Barry Lynn has done his best to try to scare evangelical pastors and evangelical churches and try to suppress their activity if not their vote.

But one alarming – I guess semi-alarming – thing that has happened out in the Midwest is that in Kansas, there’s a group that has both a 501(c)(3) and a 501(c)(4), and as part of the 501(c)(3) it is sending spies out to evangelical churches to go and listen to the sermons and see if they’re somehow violating the IRS tax code. Of course, my own personal feeling is that for whatever reason they go to an evangelical church, I’m grateful they’re going. They may get more than they bargained for. (Laughter.)

MR. LUGO: Thank you.

The lady in the back.

TAMMY JONES: I’m Tammy Jones from the American Association of Christian Schools. You just answered one of my questions about whether any church has ever lost its tax-exempt status.

My other question is for Dr. Walters. Could you comment on what Dr. Land just said about suppressing political activity? You mentioned that Republicans are actively suppressing black voters, and then you mentioned that the Democrats are going to be disappointed in their use of 527s to obtain the black vote. How is that? Or would you comment then on what your cure is for that? And then, how is that different from what Dr. Lynn, as Dr. Land just told us, is doing to the evangelical church?

MR. WALTERS: Well, Dr. Lynn is a thorn in everybody’s side.

MR. LAND: I agree. That’s Lynn – L-Y-N-N – not Land.

MR. LUGO: Not Land, okay. (Laughter.)

MR. WALTERS: No, he gives equal pain to everyone. But Barry Lynn is not the attorney general of the United States. Now let me make that clear. So there’s a different order, I think, of concern and scrutiny here.

Now, we’ve thrown this around but I think it’s true. The situation is a mess. It’s not only a mess with respect to the IRS laws governing the activity of churches; it’s also a mess with respect to how you fix this. You can’t fix this.

I sat through – and by full disclosure, I’m a co-chair of a 527 and I’m on the board of a 501(c)(3) organization, and all of them are involved in getting the vote out. So we have tried to parse through this year with all sorts of lawsuits and FEC hearings and investigations, and legal challenges by Republicans to McCain-Feingold, and it is a swamp, but at this point no one knows what to do except to go through this election cycle pretty much as we have before, with the hope that maybe something would be done. There has been a recent decision of the courts on this. I think that’ll be appealed till the cows come home and nothing will happen in this election cycle. But I don’t have a cure for it, to tell you the truth.

Now, the point I was raising about the 527s and what they are doing is a very real one because what they are doing is usurping the role that African-American churches – the community – has played in this era. Now, for us, the result is that if organizations like America Coming Together, which is run by Steve Rosenthal, the former political director at the AFL-CIO, or the Media Fund, which has raised $43 million, and it’s run by Ickes, even though he’s a former Clinton person – if these people are able to usurp the role of our infrastructure and political participation, it means it diminishes our political participation, our political power, our voice in the political system.

Those are the stakes. Now, how you fix that I don’t know, because there’s a lot of money here, there’s a lot of passion here, and at least on the left people want to defeat George Bush at all costs, so they feel there’s a lot at stake. They can’t trust the black organizations to do these things, and so forth and on and on and on. So in this atmosphere I really don’t have – and no one else has really come up with a good answer for you.

MR. LUGO: If I could follow up on that and then I’ll let Bob Tuttle get in on it.

You had made the comment in your remarks – and again you come back to it – that this is more politicized in 2004 than you’ve ever seen it. At the same time you just make the point again that black churches are less connected than before because of the 527s. I assume you’re not dealing here with some Lutheran ambiguity like Tuttle, so sort out those two statements for me. They seem on the surface to be contradictory.

MR. WALTERS: Yeah, they’re really not. In my initial remarks I tried to link one to the other. One of the reasons why they are not as active is because they have been politicized.

MR. LUGO: Aha. Okay. Could you repeat that?

MR. WALTERS: One of the reasons why they are not as active is because they have been politicized and they have been supplanted.

QUESTION FROM AUDIENCE: They’re not as active because they’ve been politicized?


QUESTION FROM AUDIENCE: Politicized in terms of being marginalized?

MR. WALTERS: Well, both. We’ve been just talking about this chilling effect of the investigations that have occurred that have impacted a religious community. As a matter of fact, one of the things they did was they called me and they said, “Do you have any advice for us on how we can be involved in the electoral season with all of these laws and things going on?” I sent them this guide. It has been a very helpful guide to black churches because a lot of them are confused now about things changing.

So there is this chilling effect that I talked about. It has made some reticent to jump into the political season. Some have established ties through the faith-based programs to the Bush administration. They are wary now about following up on those ties and becoming involved in the black community so that there is this dynamic out there, which is a political dynamic, on the right. On the left there is a dynamic of supplantation. And so both of these together, I think, in some respects have made the black church less active than before. But to me, I use the term “politicization” to describe it.

MR. LUGO: Bob, you wanted to comment on this.

MR. TUTTLE: Yeah, just a quick qualification of the extent to which we think it’s a mess now. It is not really that big of a mess, because I think there are some safe rules that people can follow. I mean, I’m stepping into my role as lawyer for churches rather than sort of law professor in this, but I don’t have any trouble giving congregations guidelines that they can use and follow, just like Dr. Land described about the iVoteValues.com project where there are some safe harbors in the rule. You can give people good, solid advice that they can follow.

To the extent that there is a chilling effect, it’s a chilling effect because people aren’t following those rules. If you follow the rules, people may threaten you but they can’t do anything if you’re staying on the right side. So some of what I do hear – and this is not directed at Anthony – but some of what I hear when people talk about chilling is some sense that religious organizations should be free of these restrictions, which is not saying that they’re being chilled; it’s saying you want the rules changed. And I think that the mess – the primary mess – comes with those who don’t believe the rules should restrict.

MR. WALTERS: It’s not so much a question of the rules; it’s a question of enforcement, and it’s a question of fair enforcement. When you’re enforcing the rules on one side and not enforcing them on the other, that is the politicization effect; that is the chilling effect.So it’s not the rule itself, it’s always – I think always – how they are administered and enforced.

MR. LUGO: And certainly from the perspective of a law professor who knows more about this than probably anybody at the IRS, you’d probably respond differently to the threat than a black pastor or a white pastor confronted with the same situation. It may just scare them enough to say, you know, I don’t want to go even to the safe areas. So it may be an interesting difference of perspective there.

We have time for one final question, in the front here, the fellow from Scripps Howard. Identify yourself please.

CHRIS OTTS: Hi, I’m Chris Otts from Scripps Howard, the newswire. This is for Mr. Walters and Mr. Land.

I’m curious as to which direction politically the members of the two congregations that you represent are moving. Mr. Land, I wanted to know if the efforts by the Bush-Cheney campaign are having an effect by making a big voting block for them among Southern Baptists, or was that already there?

And, Mr. Walters, I wanted to know which 527s are trying to sway the communities that you represent, and which way are they swaying them?

MR. LAND: First of all, you asked me two different questions. One is which way the group is going, and then if the efforts of the Bush-Cheney campaign are impacting that. I personally don’t think that the efforts of the Bush-Cheney campaign are having much impact at all. I have said for a long time that the only person who can deliver evangelical voters in general, and certainly white evangelical voters and Southern Baptist voters, is the candidate himself. And this candidate has done a very good job over the last three years of motivating Southern Baptists and other evangelicals. The exit polling from the 2000 election that was done by ABC News and USA Today said that four out of five – 80 percent – of those who identified themselves as Southern Baptists when they were exit polled voted for George W. Bush against a Southern Baptist, Al Gore. And the reason for nine out of 10 of those votes was the abortion issue. I have absolutely no question that that’s the case, having lived through that transformation.

If you look at when it took place, it was a delayed impact from Roe. In 1976, Jimmy Carter got two-thirds of white Baptist votes. In 1980 he got one third, and they’ve never come back. They did marginally with Clinton, but that’s the only time they’ve even marginally come back and that was a three-way race. I was asked this question by a Washington reporter, and I’m going to tell you, I’d never thought about it this way but I think the answer is true. He said to me, “What would happen if you went back to pre-Roe, if you went back to the situation as it was on January the 21st, 1973, where there were fairly restrictive laws in most states and very liberal laws in California, Massachusetts and New York?” And I said, “Everything else being equal – and of course everything else isn’t equal now with the federal marriage amendment issue – but everything else being equal, Southern Baptist votes would go from 80-20 to 50-50.”

There are about 30 percent who grew up Democrat, who voted Democrat, who still might agree with Democrats on some economic issues, but they’re voting pro-life. And I don’t think you can overestimate the life issue in the transformation of evangelicals and their relationship to political parties in the last 30 years. It’s just impossible. I think that more than 80 percent will probably vote for Bush this time and there will be more of them because he suffered from name identification in the 2000 election. It is true that several million evangelicals didn’t vote, and the reason was because he had the same name as Bush ’41, who they saw as himself not being weak on the life issue, but his administration being much weaker on the life issue than Reagan was. And that perception has been alleviated.

MR. LUGO: Eight out of 10 African Americans are going to go beyond that on the Democratic side – probably nine out of 10, right, Ron?

MR. WALTERS: In the 2000 cycle there were nine out of 10, and I don’t know this time around how many there will be. Probably the average is 85 percent, so at least I think it’ll be the average.

MR. LAND: Do you think the vote will be up or down – the turnout?

MR. WALTERS: I think the turnout is going to be up, but let me just explain what I mean by turnout for a second. I think that if you had the number of bodies that turned out in 2000 turn out in 2004, then the vote will be up, for a couple of reasons.

In some places, people who were former felony status persons will have the right to vote – will be notified of the right to vote. There was a case in Ohio fairly recently where an organization called CURE sued the secretary of state, who happens to be somebody I know very well, Ken Blackwell. He’s a black Republican. But they have been systematically telling former felons in the state of Ohio that they couldn’t vote. Now, the secretary of state’s office has had to notify 34,000 ex-felons that they have the right to vote, so that if nothing is done in terms of increasing turnout, more people, I think, will probably vote from that pool.

Another thing is that if you look at some places, some black precincts have new voting machines. If you look at the spoiled ballots in the 2000 election, in some places half of those ballots spoiled were African-American ballots. So again, if there is no increase in the bodies that turn out, the count would register an increase in the number of African-American ballots. HAVA, for example, this time around – the Help America Vote Act – says that if you show up and your ballot status is challenged, you have a right to a provisional ballot. That wasn’t there last time.

Again, if there is no increase in turnout and if people show up and say, “I have a right to a provisional ballot; let me fill it out,” there will be an increase. So if the same number of bodies show up, I think the improvements that have been made in a legislative way with election reform will register increased turnout in the black community.

Now, on top of that you’ve got groups out there working very hard to try to get it up. My group, for example, has not very much been in the news – in answer to your question – called Voices of Working Families. It’s not been in the news because it didn’t make the same mistake as Americans Coming Together and say, “We’re out here trying to unseat Bush.” We had very smart lawyers who said, “Don’t make that mistake,” so very few people even know about it.

I don’t know how many 527s there are because every other day somebody sets up one. P. Diddy, for example, came into this with his own – he’s got his own 527. So every other day some churches are establishing 527s. So I don’t know how many there are, but there are some big ones.

MR. LUGO: Well, our thanks to the good Lord for holding off the rain, to the hotel workers for holding off on the strike, to all of you for coming, and certainly to our speakers for their very, very interesting presentations.