In the final weeks before Election Day, more than 300 Black churches across Virginia have agreed to play a video in which Vice President Kamala Harris urges churchgoers to vote after the services for Virginia Democratic gubernatorial candidate Terry McAuliffe — a move that some experts claim violates the law.
Some lawyers suggest that the video violates Internal Revenue Service rules for churches that are tax-exempt under Section 501(c)3 of the IRS code. It is not clear whether any churches have played it yet.
"I believe that my friend Terry McAuliffe is the leader Virginia needs at this moment," Harris says in the video. "Early voting has already started, and this is the first year that you can vote on Sunday, so please vote after today's service, and if you cannot vote today, make a plan to go vote."
Jonathan Turley, a professor at George Washington University Law School, cited the statute, which extends tax-exemption to entities that do "not participate in, or intervene in [including the publishing or distributing of statements], any political campaign on behalf of [or in opposition to] any candidate for public office."
He cited the Johnson Amendment, which states that tax-exempt groups "are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of [or in opposition to] any candidate for elective public office."
The statute further adds that "contributions to political campaign funds or public statements of position [verbal or written] made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes."
Jan Baran, a partner at Holtzman Vogel Baran Torchinsky & Josefiak PLLC, suggested that the statute may not apply to the video in question.
"This assumes the church is speaking. Are the pastors making the statements or Harris?" Baran told Fox News.
Turley rejected this suggestion.
"The actual rule … does not simply limit the prohibition to ‘intervention,'" he told Fox News in an email statement. "It includes participating and specifically references publishing or distributing statements. Moreover, the church speaks by featuring the video, particularly knowing in advance [as here] that the video will be calling the faithful to vote for McAuliffe. It is actively seeking to distribute that message to the faithful."
An election lawyer who spoke with Fox News on condition of anonymity suggested that the video likely does violate the Johnson Amendment.
"If Kamala Harris actually is specifically endorsing a candidate, and churches are showing this in their churches, that seems like it would be a pretty clear violation of the Johnson Amendment," the lawyer said. "I think them showing the video would make it their speech, basically."
But even if the video broke the law, that may not result in penalties for the churches involved.
The IRS "has not gone after churches for these types of violations before," taking a more generous view regarding political speech," the election lawyer noted. The agency will often consider a pastor's remarks about an election to be that pastor's personal speech, rather than the church's words, the lawyer explained.
The lawyer also noted that the Biden administration is unlikely to apply the law to sanction Harris or the McAuliffe campaign, which President Biden has endorsed.
"How bad does that look for the Biden administration to start cracking down on Black churches?" the lawyer said.
Baran also noted that the IRS does not typically apply the statute this way.
"I don’t believe the IRS has applied the statute in the way advocated by Turley," Baran told Fox News. "I am unaware of any church, including an evangelical church, in which a candidate has spoken being subject to revocation of tax-exempt status. Turley does not cite an example."
The McAuliffe campaign did not respond to Fox News' request for comment. The vice president's office referred Fox News to the McAuliffe campaign.