What Perry and the nonprofit AFA can’t say at next month’s prayer event

July 07, 2011 | Last updated: July 31, 2020

Image has not been found. URL: http://images.americanindependent.com/2010/07/MahurinReligion_Thumb.jpgGov. Rick Perry’s affiliation with the American Family Association for his prayer event next month has already drawn protest plans from several faith-based and grassroots organizations on religious and sexual freedom grounds, but under federal tax law, AFA must also tread lightly around Perry’s possible presidential aspirations.

As a religious nonprofit with a record of backing events featuring prominent conservative candidates, AFA is prohibited from directly or indirectly supporting or opposing any candidate for public office, and is barred from any type of political fundraising.

At an AFA event like “The Response” on August 6, candidates can only speak in their non-candidate capacity, and cannot make any reference to a possible election or reelection effort. At least two previous IRS investigations concerning political intervention have targeted either AFA or an organization linked to its individual partners.

All eyes are on Perry’s next move in his possible GOP presidential bid, and the Wall Street Journal has speculated his announcement may take place around the same time as the prayer event, but the rally is legally prohibited from being a venue for election talk.

The IRS tax guide for churches and religious organizations lists a few other requirements to ensure Perry’s appearance at the AFA-sponsored event doesn’t run afoul of federal law:

• Perry must have been chosen to speak solely for reasons other than candidacy for public office;

• he must speak only in a non-candidate capacity;

• neither he nor or any representative of AFA can make any mention of his or her candidacy or the election;

• no campaign activity should occur in connection with Perry’s attendance;

• AFA must maintain a nonpartisan atmosphere on the premises or at the event where the candidate is present; and

• the communications announcing the candidate’s attendance at the event, AFA must clearly indicate the capacity in which Perry is appearing, without mentioning his political candidacy or the upcoming election.

“If it remains nonpartisan in nature and if Perry makes sure he is not represented as a candidate, there shouldn’t be a major problem,” said Tara Malloy, associate legal counsel at the Washington-based Campaign Legal Center. “But if it somehow becomes a campaign event — and that doesn’t just mean running an ad, it could be a lot more subtle — then you have a potential problem with the IRS.”

“It will become tricky if he announces a presidential bid or a reelection campaign before the rally, the question will become: will he avoid campaign talk or an endorsement?” Malloy said.

Many of the prayer rally’s endorsers have political ties to Perry, like the Liberty Institute’s Kelly Shackelford, who served on Perry’s reelection steering committee; WallBuilders CEO and the prayer rally’s “event coordinator” David Barton, a former vice chair of the Texas Republican Party; and Wayne Hamilton, who served as Perry’s executive director on two of his Inaugural Committees and works with events and consulting for the governor. Malloy said the involvement of those partisan figures isn’t necessarily cause for concern, though it did “seem a little funny” and could be a strike against AFA should problems arise with their tax-exempt status.

“The question of when does that line cross over from issue advocacy to candidate support has been something of a problematic area for nonprofits insofar as partisan leanings go,” said Malloy. “The answer isn’t always clear.”

The event also includes supporters with connections to political efforts, like David Lane, a highly influential conservative activist who led an issue campaign to unseat three state Supreme Court justices in Iowa support of same-sex marriage. It also features Republican Party members like former U.S. Rep. Bob McEwen, former Texas State Senator Mike Richards and Timothy Johnson, a former vice-chairman of the North Carolina GOP.

On a state level, Texas campaign laws would be violated if any type of candidate endorsement occurs, said Craig McDonald of Texans for Public Justice. “If there is no real plea to support a candidate or encourage someone to vote for a candidate then they wouldn’t be in violation of any law,” McDonald said, “even if other aspects of the event may be in bad taste or poor judgment.”

In the lead-up to the rally, event organizers haven’t shied away from the event’s political overtones. “What we’re doing with the pastor meetings is spiritual, but the end result is political,” said Lane, the Perry event’s national finance chairman, in an April New York Times article about a similar event in Iowa.

With funds from AFA, Lane has orchestrated a series of “Pastor Policy Briefings” in more than a dozen states, attracting nearly 10,000 pastors nationwide. The meetings, wrote the Times, are part of “a largely quiet drive to revitalize the religious right by drawing evangelical pastors and their flocks more deeply into politics.”

Co-hosted by former GOP presidential candidate Mike Huckabee, the Iowa briefings featured Mississippi Gov. Haley Barbour and current presidential contender U.S. Rep. Michele Bachmann of Minnesota. The ostensibly apolitical AFA-backed pastor meetings were instrumental in aiding Huckabee to victory in the 2008 Iowa Republican caucuses.

AFA was careful not to violate federal tax laws that prohibit endorsing candidates, the Times said, by instructing the audience to motivate churchgoers into voting along “biblical principles,” rather than making direct candidate endorsements.

But the group has come under fire for partisan electioneering in the past. In January 2008, Americans United for Separation of Church and State called for an IRS investigation into AFA and WallBuilders, charging that the groups produced voter guides designed to promote Huckabee’s campaign.

The guides listed Republican candidates and their stance on issues ranging from traditional marriage to support for a human life amendment; Huckabee was the only candidate in agreement with all issues. “These guides are not voter education,” Americans United Executive Director Rev. Barry W. Lynn said at the time. “They’re partisan propaganda.”

Lynn, the Americans United director, told the Texas Independent in early June that Perry’s upcoming event has “the smack of a political agenda, whether it directly involves Gov. Perry’s future plans or not,” and that, “it positions him to be seen as a quasi-religious figure.”

Lynn, an attorney and a minister of the United Church of Christ said, “The whole arrangement clearly violates the spirit and idea of separation of church and state. Government officials shouldn’t be in the business of calling on people to fast and pray; they should be working on how to fix our roads. They should leave prayer to the clergy of the state.”

Described by the Times as “a stealth weapon for the right,” David Lane’s influence in Texas escalated in 2005 when he was executive director of the Texas Restoration Project­, a series of meetings meant to mobilize conservative pastors and their congregation to vote. Held around the time of a Perry reelection campaign, no prospective candidate but the governor was invited to the meetings. The last event centered on celebrating Perry’s 2007 win.

The program, backed by AFA and Barton, drew more controversy following the discovery that major funding for the event, including Lane’s salary, came from a handful of wealthy Perry campaign donors like San Antonio businessman James Leininger and Houston homebuilder Bob Perry.

The money was funneled through the Houston-based nonprofit Niemoller Foundation, which spent roughly $1.26 million to finance the Texas Restoration Project’s six pastor briefings.

The watchdog organization Texas Freedom Network asked the IRS to investigate whether the group urged churches to assist in Perry’s reelection campaign efforts, political activity that would have jeopardized the foundation’s tax-exempt status.

Shrouded by a purported effort to support a ban on same-sex marriage, the meetings were essentially “a sophisticated voter identification and mobilization strategy intended to benefit the Perry campaign in 2006,” the watchdog group wrote in a 2008 statement listing a number of links between the project and Perry’s campaign.

But after reviewing speeches and program materials, the IRS decided the Niemoller Foundation didn’t violate its tax-exempt status. While some speech topics (like advocating against gay marriage) and the names used for some of the events (such as “pre-inaugural dinner”) appeared to foster political intervention, the IRS said no speakers endorsed a specific candidate. Voters were encouraged simply to “vote their values.”