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Why Kamala Harris’ video on Virginia’s election is raising legal concerns

Vice President Kamala Harris recorded a video encouraging Black church members in Virginia to vote for Terry McAuliffe for governor

Vice President Kamala Harris waves to the crowd along with Democratic gubernatorial candidate, former Virginia Gov. Terry McAuliffe, left, during a rally in Dumfries, Va., Thursday, Oct. 21, 2021.
Steve Helber, Associated Press

Vice President Kamala Harris is far from the only top Democrat campaigning for Terry McAuliffe as the race to be Virginia’s next governor enters its final days. However, she is the only party leader whose show of support may get churches in trouble.

The conflict stems from a video released earlier this month in which Harris calls on churchgoers to cast their ballot for McAuliffe. She describes voting as a “sacred responsibility” and discusses the importance of putting your faith into action.

“I believe that my friend Terry McAuliffe is the leader Virginia needs at this moment,” she says.

By election day on Nov. 2, the video will have been played in around 300 Black churches across Virginia, according to CNN. Many legal experts believe these showings violate IRS prohibitions on partisan political activity by nonprofits, which are outlined in a policy called the Johnson Amendment.

“Most houses of worship are 501(c)(3) organizations that are prohibited from intervening for or against a candidate for public office,” tweeted Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty, in a thread on the video.

She and others who have researched the tax code said that a church’s decision to play Harris’ video could be interpreted as unlawful partisan speech even if church leaders aren’t the ones directly campaigning for McAuliffe.

“The church speaks by featuring the video, particularly knowing in advance that the video will be calling the faithful to vote for McAuliffe. It is actively seeking to distribute that message,” said Jonathan Turley, a law professor at George Washington University, to Fox News.

However, even if IRS officials agree with Turley’s interpretation of the situation, it doesn’t mean any of the Virginia churches will face consequences. The government is notoriously hands-off when it comes to policing Johnson Amendment-related violations, as The Washington Post reported in 2016.

“Historical experience with the law is notable mainly for how little church-based political engagement it has prevented,” the article noted.

Still, the faith community needs to remember not to let partisanship invade spiritual spaces, according to Michael Wear, who previously worked on religious outreach for the Obama administration.

“The politician can ask. The church ought to say no,” he tweeted.

Tyler concluded her tweet thread on faith-related political activity with a link to a one-page guide on legal ways for churches and other nonprofits to get involved in election season. It notes that houses of worship can encourage members to vote and even host candidate forums, but not throw the institution’s support behind a specific party or campaign.

“Houses of worship can engage in nonpartisan voter mobilization efforts. Given the widespread voter suppression efforts across the country right now, getting information out about when and where to vote from trusted sources like churches is an important voter protection measure,” Tyler tweeted.