Last month, Donald Trump signed an executive order supposedly weakened the Johnson Amendment. That’s the part of the law that says tax-exempt organizations, like churches, cannot endorse candidates from the pulpit. Nor can the ACLU, for example, tell members to vote for a Democrat. They can all talk about social issues and “sin,” but they can’t cross the line into telling their members who to vote for.
The Religious Right hates that amendment. They say it violates their freedom of speech, and they’ve been trying to get it repealed for years. Trump said he would do just that if elected. And it’s no doubt part of the reason evangelicals overwhelmingly supported him.
Yet his executive order didn’t quite go so far as a repeal, in part because Trump didn’t have the authority to do that. He merely told the IRS that it was okay to not go after churches that violated the rules of their tax exemptions. They weren’t going to be punished for looking the other way.
But the IRS was already not going after those churches, much to the chagrin of church/state separation groups. Even when pastors baited the government by sending in videos of their politicking, their tax exemptions remained in place. Trump’s order, then, merely said “IRS, keep doing what you’re doing.”
It would take an act of Congress to achieve an actual repeal.
And that’s what Congress is now trying to achieve.
House Republicans working on a forthcoming budget bill have included a section that would tell the IRS to back away from pursuing Johnson Amendment violations entirely.
The Center For Inquiry explains:
Today, the House Financial Services and General Government subcommittee will be marking up the House’s FY 18 Financial Services appropriations bill, and within that bill, in Section 116, it states that the IRS may not use any funds to investigate a church for breach of the Johnson Amendment without the personal signoff of the IRS Commissioner, who must also report to Congress on the investigation.
Section 116 says:
None of the funds made available by this Act may be used by the Internal Revenue Service to make a determination that a church, an integrated auxiliary of a church, or a convention or association of churches is not exempt from taxation for participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office unless.
(1) the Commissioner of Internal Revenue consents to such determination;
(2) not later than 30 days after such determination, the Commissioner notifies the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate of such determination; and
(3) such determination is effective with respect to the church, integrated auxiliary of a church, or convention or association of churches not earlier than 90 days after the date of the notification under paragraph (2).
Under the current law, which has been in place for the last six decades, houses of worship have maintained robust free speech rights and can speak out on any political and social issues that they see as important. They currently can engage in public debate on any issue, host candidate forums, hold voter registration drives, encourage people to vote, help transport people to the polls and even, with a few boundaries, lobby on specific legislation and invite candidates to speak. They simply cannot endorse or oppose candidates and maintain their special tax-exempt status.
Section 116 would make it very difficult for the IRS to investigate claims that churches have violated the law by requiring consent from the IRS Commissioner for each investigation and notification to two committees in Congress before such investigations commence. The first requirement would slow down, if not functionally halt, the pursuit of 501(c)(3) violations, while the second would only further politicize these investigations.
The letter also adds that Section 116 is problematic because it specifically says this new rule would only apply to religious groups, giving them a position of privilege under the law.
Additionally, although the current law applies to all tax-exempt nonprofit organizations, Section 116 would apply only to houses of worship. By giving houses of worship special treatment in the enforcement of IRS restrictions on intervention in political campaigns, the amendment raises serious concerns under the Establishment Clause of the First Amendment to the U.S. Constitution and undermines religious freedom.
This is a serious problem, not to mention a lawsuit waiting to happen.
“This is a blatant attempt to exempt Christian churches, and churches alone, from complying with the Johnson Amendment, which has kept houses of worship from becoming de facto campaign offices for politicians,” said Nick Little, Legal Director of the Center for Inquiry. “Note that there is no provision for secular, non-faith-based nonprofits to enjoy those same protections, nor does it mention anything about synagogues, mosques, or any other religious institution.”
“The religious right won’t tell you this, but the current law doesn’t restrict any group’s free speech rights,” said Little. “Nonprofits and religious groups can, and do, speak out freely on the issues that matter to them, including abortion, health care, LGBTQ rights, and the environment. “What they can’t do is tell their parishioners who to vote for, or donate church money to a candidate’s campaign.”
“Only members of the radical religious right are looking to shackle the Johnson Amendment,” he said. “And they believe they have devised a scheme to do just that. We can’t let them get away with it.”
Republicans have the numbers to pass this bill, but that doesn’t mean they should. Especially if they care about the Constitution.
(Screenshot via YouTube)