SAN DIEGO — Catholic Answers is challenging a 2008 Internal Revenue Service ruling that it interfered in the 2004 presidential election by recommending Catholic presidential candidate John Kerry be denied Communion.

But one expert on free speech at the University of Notre Dame, Lloyd Mayer, associate professor of law, is worried that this may be “the right principle but the wrong case.”

The IRS at first levied an income tax of $102.23 on the San Diego apologetics organization, but returned the money, without reversing its ruling, after Catholic Answers appealed it.

Said Catholic Answers’ founder and president, Karl Keating: “It’s the principle of the thing. The IRS is bullying us and other charities.”

The James Madison Center for Free Speech, an Indiana-based legal advocacy organization, has launched a federal lawsuit on Catholic Answers’ behalf, seeking not only that the IRS’ finding be overruled, but that the regulations behind it be found an unconstitutional infringement on free speech.

In addition, the suit wants an IRS order thrown out that Keating personally reimburse Catholic Answers for the $831.41 the federal agency says it cost the nonprofit to send out his two e-mails.

Again, the amount is relatively small. But on top of it, says Catholic Answers, there were hundreds of hours of staff time over three years and tens of thousands of dollars expended by Catholic Answers as it pulled together and copied financial paperwork demanded by the IRS during its investigation.

“All of this has a chilling effect on us and other nonprofits,” said Catholic Answers spokesman Jimmy Akin.

Catholic Answers’ defense is twofold: First, it insists it didn’t intervene in the election because in neither e-mail did Keating state that Kerry was a candidate for the presidency or urge his readers to vote against him. The letters were, rather, an argument that bishops who failed to withhold Communion from pro-abortion politicians were negligent.

Second, the suit argues that the IRS regulation fails to define political intervention sufficiently, thereby “creating a regulatory minefield for nonprofits, which is virtually impossible for them to navigate without completely foregoing any activity that mentions public officials and candidates during election years.”

Notre Dame’s Mayer says the point is well taken, and the IRS also needs to be challenged on its “standard tactic” of withdrawing fines when challenged, while leaving the finding of political intervention intact. This means the IRS can argue for the dismissal of most lawsuits on the grounds that the complainant has suffered no harm; at the same time, the IRS avoids a court challenge.

Weaknesses in Lawsuit

One problem with Catholic Answers’ case, says Mayer, is that the $102.23 has been returned.

But a more serious weakness is that the organization may have difficulty demonstrating more serious harm — the chilling effect on its free speech rights. “They seem to be doing what they have always done,” said Mayer. “They don’t seem to have been chilled.”

What’s more, Catholic Answers has set up a second organization without charity status through which it can comment on politics without fear of IRS retaliation.

According to Mayer, the Supreme Court has ruled against organizations with taxable subsidiaries like this because they still have a means to exercise their free speech rights. So a stronger case would be one brought by a church which has no real reason to set up a taxable subsidiary.

Nonetheless, Mayer believes the Catholic Answers lawsuit is right on the money with its assertion that the vagueness of the ban on political intervention has a chilling effect.

“It’s not really enforceable if the IRS backs down whenever it’s challenged,” he said.

The result is that some organizations can flout it with impunity while many organizations without the resources to fight are afraid to exercise their rights.

On its website, the IRS describes 21 recent investigations and their outcomes. The IRS states it will be guided by “the facts and circumstances” of each case.

“Even if a statement does not expressly tell an audience to vote for or against a specific candidate, an organization delivering the statement is at risk of violating the political campaign intervention prohibition if there is any message favoring or opposing a candidate,” the statement says.

‘Pulpit Freedom Sunday’

But “at risk of violating” is just the sort of vagueness that Catholic Answers argues in its suit infringes on free speech by preventing nonprofits from knowing precisely how far they can go.

According to Keating, the investigation was prompted by a complaint by Frances Kissling of Catholics for Choice, a pro-abortion group that prompted the IRS to go after the Archdiocese of St. Louis during the same election campaign in addition to complaining about Catholic Answers’ “Voters Guide for Serious Catholics.” The IRS investigated the latter but ruled it had not violated the regulation. (At press time, Catholics for Choice had not responded to the Register’s request for comment.)

Before the 2008 election, 33 Protestant churches challenged the same IRS regulation by sending the agency videotapes or audiotapes of sermons that deliberately endorsed or condemned one or the other (or, in one case, both) of the two presidential candidates.

Putting them up to what it called “Pulpit Freedom Sunday” was the Alliance Defense Fund, a Christian legal organization dedicated to protecting the First Amendment rights of churches (and occasionally synagogues). The ADF’s senior legal counsel, George Stanley, said the IRS has not responded.

“They can take years,” he said. “We’re waiting, and each year we’ll hold another Religious Freedom Sunday.”

The ADF would prefer the IRS to make a finding against the churches so the law can be challenged in court.

“It’s a violation of both freedom of speech and religion,” Stanley said.

Johnson Amendment

The IRS regulation has been called the Johnson Amendment because, he said, it was introduced by then Sen. Lyndon Johnson, D-Texas, in 1954 to shut down two right-wing but secular nonprofit organizations that were attempting to unseat him.

“Before that, pastors had been preaching biblical truth into elections since the nation’s foundation,” Stanley said, adding, “this regulation has never been challenged in court.”

Web comments on a Catholic News Agency story on the Catholic Answers suit ran overwhelmingly in support of Catholic Answers. Typical was this comment from Californian Margie Tiritilli: “The IRS is subsidized by U.S. citizens and wouldn’t exist without taxpayers. It’s time to stop their jackbooted tactics of intimidation.”

The stakes in the case are high, said Catholic Answers’ Akin: “It is our intent and our desire to take this case all the way to the Supreme Court so that the ruling will apply to nonprofits all across America.”

Steve Weatherbe writes from

Victoria, British Columbia.