In honor of Thursday’s National Day of Prayer, President Donald Trump has signed an executive order titled "Promoting Free Speech and Religious Liberty" that will, among other things, fulfill his campaign promise to “get rid of and totally destroy” the Johnson Amendment. That was a rule, passed in 1954 and proposed by then-Sen. Lyndon B. Johnson, barring 501(c)(3) nonprofits, including churches and other religious entities, from “directly or indirectly” participating in a political campaign. Another provision of the order affords vague "regulatory relief" to companies that object to the Obamacare mandate for contraception in health care. But the final order was narrower than an earlier draft, which would have allowed federal contractors to discriminate against certain employees on the basis of faith.
The Johnson Amendment states that nonprofit organizations may not “participate in, or intervene in … any political campaign on behalf of (or in opposition to) any candidate for public office.”* Some clergy have long objected that this encroaches on their right to free speech. But as Marty Lederman explains here, the Johnson Amendment applies to all 501(c)(3)s, not just religious institutions, and that in fact when it comes to the political speech of churches, the IRS has been vastly more deferential to the churches than not. Indeed, even though hundreds or even thousands of clergy around the country have explicitly and deliberately engaged in partisan political speech from the pulpit as part of an annual “Pulpit Freedom Sunday”—and then sent the recorded evidence to the IRS—the agency has persistently refused to take the bait and take away any churches’ 501(c)(3) status. The only such instance anyone can cite is a 1995 case in which the IRS denied the nonprofit status of an upstate New York church after it took out a full-page newspaper ad warning Christians not to vote for Bill Clinton.
Of course speech from the pulpit itself is not the only issue churches are worried about, because as professor Doug Laycock explains here, nobody actually goes after pastors for religious speech, and the amendment could certainly be tweaked to protect them more broadly under the First Amendment in any event. But, this whole fight is, as speech fights often are, probably just a proxy for a bigger fight about money. Which as you know is speech. Especially when you have buckets and buckets of speech to unload. As Laycock explains, as currently drafted, the Johnson Amendment serves an important function, because it currently prevents churches and other 501(c)(3)s from becoming “a huge loophole in the campaign finance laws” that would allow churches to participate more freely in pouring dark money into elections, without any fear of disclosure requirements. All of this comes with the added benefit that donations to churches or 501(c)(3)s are tax-deductible. The electoral consequences of giving special status to church money could be profound.
As Noah Bookbinder, executive director of D.C.-based Citizens for Responsibility and Ethics in Washington, told the Atlanta Journal-Constitution here, the remaining limits 501(c)(3)s would still have on their political activities offer little solace: “There are these massive, massive existing charities. The Salvation Army already spends $3.5 billion dollars. So that means they could now spend $3 billion on politics without disclosing their contributions. The built-in infrastructure that could be used for politics is rather staggering.”
Since it would require an act of Congress to do away with the Johnson Amendment, the current executive order is limited to the announcement of a shift in the IRS enforcement priorities: The president directs the IRS to stop enforcing these tax laws for religious organizations, including churches. That alone could effectively spell the amendment’s demise because, as Lederman observes, if the president is singling out churches, which are already subject to close to zero enforcement of the tax laws, for even less enforcement than other, secular 501(c)(3)s, it raises constitutional red flags under the First Amendment’s Establishment Clause.
Most experts are frankly baffled at Trump’s single-minded obsession with this issue. It appears to appeal solely to a handful of white evangelical leaders while alienating many other religious groups. As the New York Times’ Ross Douthat pointed out in a tweet this morning, “In years of conversations w/religious leaders worried about their institutions' liberties, Johnson amendment has literally never come up.” And John Inazu, who teaches religion and law at Washington University in St. Louis, told the Washington Post recently that, “In the universe of religious freedom issues facing our country today, the Johnson Amendment doesn’t come even close to the top. … My hunch is that one or two of Trump’s ‘religious advisers’ mentioned the Johnson Amendment early in the campaign. But how and why they focused on that issue is beyond me.”
In signing the order Thursday—which, by the way, plenty of conservatives hate, too—Trump said that “for too long the federal government has used the state as a weapon against people of faith.” Later he told the religious leaders gathered at the event that “you’re now in a position to say what you want to say. … No one should be censoring sermons or targeting pastors.” Professor Micah Schwartzman, who teaches law at the University of Virginia, says the argument that churches have been subject to “bullying” or “surveillance” is simply not a real problem. As he explains in an email, "Some churches claim that they are worried about the government surveillance, as if IRS agents are going to sit in their pews on Sunday morning and record the minister's sermon. It never happens. It's a nonissue." But if you consider that some faith leaders disagree, and see not only “bullying” but a persistent chilling effect on religious speech, Trump’s gesture appears to be the kind of not solution to a nonproblem the Trump administration has all but perfected in its early months. A handful of white churches get to claim again that they alone have been victimized, the president changes enforcement priorities to align with what the enforcement priorities have always been, and yet more dark money pours unchecked into the system, just as God would have wanted.
*Correction, May 4, 2017: This post originally stated that the executive order directed the IRS to “exercise maximum enforcement discretion" in enforcing the Johnson Amendment. That language was in a draft of the order but not in the final version.