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Democratic leaders are targeting church goers to get out the vote, endorsing Democratic incumbent Gov. Terry McAuliffe, who is slightly behind in the polls for the first time after making controversial remarks about parents not having a say in their children’s education.

Some argue the Souls to the Polls campaign violates IRS rules governing tax-exempt entities such as churches.

McAuliffe’s Republican challenger, political newcomer Glenn Youngkin, has slightly pulled ahead of him, according to a recent Trafalgar Group survey of 1,095 likely voters. Youngkin has 48.4% support to McAuliffe's 47.5%, giving Youngkin a slight lead in the race for the first time.

As part of a Souls to the Polls campaign, Democratic leaders began descending on Virginia churches this week, primarily black churches.

Atlanta Mayor Keisha Lance Bottoms visited three Black churches in Richmond on Sunday and former Georgia gubernatorial candidate Stacey Abrams went to churches with McAuliff, saying that she was the daughter of “not one but two pastors.”

First Lady Jill Biden campaigned for McAuliffe last week, former president Barack Obama this week, and President Joe Biden is planning to visit.

But what has many critics up in arms is a video that was sent to 300 Black churches by Vice President Kamala Harris endorsing McAuliffe. One legal scholar argues that she violated IRS rules and jeopardized the churches’ 501C3 status if they share the video.

CNN reported , "More than 300 Black churches across Virginia will hear from Vice President Kamala Harris between Sunday and election day in a video message that will air during morning services as part of an outreach effort aimed to boost McAuliffe." The first message was delivered Oct. 17.

In the video, Harris speaks of her own church experience as a child, saying her time in church "taught her it was a 'sacred responsibility' to 'lift up the voices of our community.'" And those voices, she suggests, should vote for McAuliffe.

"I believe that my friend, Terry McAuliffe, is the leader Virginia needs at this moment," Harris says in the video.

The Souls to the Polls campaign involves block-party-type events featuring top campaign surrogates after church services in neighborhoods near polling locations, designed to drive voter turnout.

But the Johnson Amendment passed by Congress in 1954 bans nonprofit organizations, including churches, "from engaging in any political campaign activity."

A tax-exempt entity under IRS code 501(c)(3) is one "which does 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."

The IRS states, “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.”

Legal scholar Jonathan Turley argues , “such direct politicking in tax-exempt churches has been unlawful for decades,” citing Section 501(c)3 of the IRS tax code.

“The IRS makes clear that such violations will not be tolerated,” he said. “The agency warns 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.’”

He also points out that the churches airing the videos could lose their tax-exempt status at worst, and at best are hypocritical.

“What is most hypocritical is that the Democrats used the opposition to the Johnson Amendment by former President Donald Trump as a rallying cry in the last election,” he argues.

The criticism of Harris and others comes after a formal complaint was filed by Citizens for Responsibility and Ethics in Washington against White House Press Secretary Jen Psaki for allegedly violating the Hatch Act after she responded to a question about the Virginia gubernatorial race in favor of McAuliffe or of Democrats campaigning in churches.

The IRS has not issued a statement on Harris’ video.

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Anti-Trump group led by longtime GOP strategist Bill Kristol raised, spent millions during 2020 campaign

William KristolChip Somodevilla | Getty Images

A group led by longtime GOP strategist Bill Kristol and a group of fellow so-called Never Trump Republicans raised more than $35 million during the 2020 election, funding projects that targeted then-President Donald Trump.

It was a record haul for the relatively young nonprofit organization, which was established in 2018, the second year of Trump's term in office. In 2019, it raised $9 million, according to a filing.

The group, called Defending Democracy Together, used its haul to spend more than $13 million on grants during 2020. Its biggest single contribution, $6 million, went toward one of the group's projects, Republican Voters Against Trump, according to a 990 tax disclosure first reviewed by CNBC.

That project was intended to give what the group says were Republican voters a chance to speak out through video testimony on their dislike of the former commander in chief.

Defending Democracy Together also donated over $4 million to WorkMoney, a separate 501(c)(4) nonprofit that recently launched a campaign to press moderate lawmakers to fall in line with President Joe Biden's agenda.

A spokeswoman for Defending Democracy Together did not return a request for comment before publication.

Kristol was not always sympathetic to Democratic causes. He was an advisor in President Ronald Reagan's administration, and he became one of the leading voices of the neoconservative movement in the Republican Party. He was the founder and editor of the conservative magazine The Weekly Standard, and was a vocal supporter of President George W. Bush's Iraq invasion. Kristol is also known for his early support of then-Alaska Gov. Sarah Palin, who would go on to be Sen. John McCain's running mate on the GOP ticket in the 2008 election, when Barack Obama and Biden won control of the White House.

During Trump's rise, however, Kristol largely broke with his party and became one of the leading voices on the right to oppose the former president and his agenda.

Defending Democracy Together is, like WorkMoney, a 501(c)(4) nonprofit that does not publicly disclose their donors. Its 990 disclosure form shows two anonymous donations each worth over $10 million. One of those donations came from the Sixteen Thirty Fund, a dark money fund that often backs Democratic leaning causes.

Previous backers of the group include a foundation run by conservative media mogul Rupert Murdoch's son James Murdoch and his wife, Kathryn. The Murdoch family own a sprawling media empire, including Fox News. Another previous financier of the group is a foundation funded entirely by eBay founder Pierre Omidyar.

Kristol is not the only Republican running the organization. Sarah Longwell, a veteran Republican strategist, is the group's executive director. Their website lists former Republican New Jersey Gov. Christine Todd Whitman as a director.

Outside of the grants, Defending Democracy Together spent over $7 million on Facebook ads, according to its financial report. The group also paid over $4 million to Longwell Partners, a communications firm run by Longwell herself.

Defending Democracy Together also paid over $3 million for advertising to Applecart, a data firm that saw an investment from Hollywood super agent Ari Emanuel, the brother of former Obama chief of staff and Chicago mayor Rahm Emanuel.


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