- Joel Kramer/Flickr.com
- Speech is a right. Tax-exemption isn't.
At a press conference on May 4, President Donald Trump issued a directive, announcing his administration is taking "historic steps" to "give our churches their voices back."
The order, titled "promoting free speech and religious liberty," urges the end of the Obama-era requirement that employee-sponsored health plans cover birth control and directs the Treasury Department to "not take any adverse action" against individuals or organizations that engage in political speech from a religious perspective. (Remember, post-Citizens United, "speech" means spending.)
That second part is an attempted follow-through on Trump's promise to, as he put it at the National Prayer Breakfast in early February, "get rid of and totally destroy the Johnson Amendment." (Attempted because to actually "get rid of" a law would require an act of Congress, but executive power allows the president to order the Internal Revenue Service "to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment," as he put it for the news cameras.)
The Johnson Amendment is a provision in the tax code, named for its sponsor, then-U.S. Sen. Lyndon Johnson, stating that all 501(c)3, tax-exempt charitable organizations "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."
It's the law that forbids "politicking from the pulpit," but that colloquialism may be misleading — the Johnson Amendment does not preclude religious leaders from opining about policy or politics in their official or unofficial capacity. That's protected speech.
What the Johnson Amendment does do is forbid tax-exempt organizations and their representatives from endorsing candidates for public office or mobilizing voters along partisan lines. With this executive order, Trump seeks to create an allowance only for religiously affiliated 501(c)3s.
Since the Johnson Amendment's passage in 1954, reportedly only one church, Branch Ministries in upstate New York, has lost its tax-exempt status for crossing the line.
But plenty of churches blur the line every year during "Pulpit Freedom Sunday," an annual day of protest against the Johnson Amendment during which some 1,500 pastors across the country openly talk politics and endorse candidates in sermon. One participant locally is Focus on the Family, the parachurch famous for turning evangelical Christians into a powerful political bloc, especially during the George W. Bush years.
Focus President Jim Daly appreciates Trump's easing of the Johnson Amendment. "This action signals that his administration seeks to preserve and promote religious freedom at a time in our nation's history when such freedom seems to be slipping away," he said in a statement. He added, "Ultimately, we'd like to see people of faith be able to live out their beliefs in the public square — without fear of retribution or government interference. The executive order is a good first step toward that outcome, and there's much we're looking forward to."
Focus on the Family, a 501(c)3, already operates a website called commit2vote2018.com that provides "discerning resources and solid research you'll need before you step into the voting booth" and asks visitors to, well, commit to vote. It also promotes a voter guide that endorses political candidates and offers a voter registration kit "designed to help you set up a voter registration table at your church."
Focus also relies on partner organizations to get political. Family Policy Alliance, a 501(c)4 that's gone by other names in the past, seeks to directly influence policymaking and elections. (Its 501(c)3, the Family Policy Foundation, focuses on "education and alliance building efforts.")
Deb Walker is executive director of Citizens Project, a regional 501(c)3 organization "dedicated to defending and promoting equality, the separation of church and state, and respect for diversity." A churchgoer herself, she disputes the premise that Christians, in particular, are remotely silenced or persecuted in America. "There's this perception among the majority — whether that's a majority religion or a majority ethnicity — that when minorities gain more equality and more visibility, that hurts them somehow," she says. "Then there's a reaction to that. We see it over and over again."
Cultural trends aside, it's well-established that the First Amendment protects everyone's speech, whether they're a pastor, an imam, an artist or a Nazi. And, as Luis Toro of the government watchdog group Colorado Ethics Watch puts it, "you have a right to free speech but you don't have a right to tax exemption." Indeed, religious organizations aren't automatically tax-exempt — they have to qualify and apply for the status, then abide by its stipulations. In other words, not paying taxes is a privilege.
Walker, whose organization enjoys that privilege, feels that because the nation's founders called for the separation between church and state, "taxpayers shouldn't have to underwrite churches' political speech" if secular organizations don't get the same break.
That double standard has not gone unnoticed and will not go unlitigated. On May 4, The Freedom From Religion Foundation, an atheist advocacy organization, filed a lawsuit arguing Trump's directive violates the Establishment Clause of the Constitution which prohibits governmental preference — be it by endorsement or discrimination — of any religion over another. The American Civil Liberties Union declined to sue, calling the executive order signing "an elaborate photo-op with no discernible policy outcome," since the Johnson Amendment is hardly enforced as it is.
But relaxing the Johnson Amendment could create more imbalance and obscurity in campaign finance. Toro worries "this could open up a new channel for dark money to flow into elections that's actually tax deductible." So, could churches become de facto super political action committees (super PACs)? It's as yet unclear if spending limits or disclosure requirements would apply to campaign contributions made via a church, but the ability to claim tax exemption could make the religious angle quite appealing to candidate financiers looking for the best return-on-investment.