Religious freedom is "under threat," President Trump declared on Thursday as he pledged to do all he could to end a ban on politicking by charities, including religious groups. "I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution."
The Johnson Amendment was part of the sweeping tax act of 1954. It is named after Lyndon Johnson, then a United States Senator, who was upset that a political opponent rallied nonprofit groups to campaign against him by suggesting he was a communist.
Mr. Johnson wasn’t thinking of churches in particular, but churches are nonprofits and so the rule prohibited them as well from political activity — and it is the restrictions on speaking from the pulpit that have drawn most attention from conservatives in recent years.
We should keep in mind that the Johnson Amendment was not controversial and the tax act was passed by a Republican Congress and signed into law by President Eisenhower, a Republican. The rule may have been born out of small-minded retribution, but it was, and still is, a good idea. After all, it makes sense that charities and politics don’t mix.
On its website, the IRS explains the rule this way: "Under the Internal Revenue Code, all Section 501(c)(3) 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."
In a section of the IRS website called Charities, Churches, and Politics, the tax agency explains the constitutionality of the Johnson Amendment: "A definitive court case on the issue of free speech and political expression is Branch Ministries Inc. versus Rossotti. In that case, the court upheld the constitutionality of the ban on political activity. The court rejected the plaintiff church’s allegations that it was being selectively prosecuted because of its conservative views and that its First Amendment right to free speech was being infringed."
Mr. Trump’s assertion that religious organizations are under threat is essentially an extension of his views on free speech and political correctness. In a June speech in which he first made a full-throated pledge to allow church politicking, he said, "I think maybe that will be my greatest contribution to Christianity — and other religions — is to allow you, when you talk religious liberty, to go and speak openly, and if you like somebody or want somebody to represent you, you should have the right to do it."
Really, our new president ought to take a breath and actually think before he speaks.
He should realize that no one’s right to free speech, as guaranteed in the First Amendment, has been abridged by the prohibition on partisan politics.
Members of the clergy, like all citizens, are entitled to express their opinions. They just can’t do that in their role as leaders of nonprofits that receive tax-deductible contributions. This may seem like a minor distinction, but it is real — and it has worked to keep charities from becoming political puppets. That some religious leaders have in many instances ignored the rule does not mean it’s OK or that the rule is meaningless. Congress and the IRS should crack down on those who don’t follow the law.
Helping All Faiths?
But the questions at stake are far larger. When Mr. Trump says he wants to "allow our representatives of faith to speak freely and without fear of retribution," does anyone honestly think he means to include Muslims when he uses the word "faith"? Of course not. But he can’t say "representatives of the Christian faith" because that would be so obviously unconstitutional.
"Churches" is the word used by the IRS when discussing the politicking ban, but that term, according to nonprofit legal experts, includes synagogues, temples, mosques, and any other religious congregation.
So what does Mr. Trump mean when he talks only about churches? In fact, he means something very insidious. He means that the Christian faith should play a role in our world of government. Because churches are charities, this issue confronts the Constitution in a very real way. The Johnson Amendment did not — and the IRS does not — single out religious organizations. Society needs a place where politics doesn’t rule, and the nonprofit world is that place.
Religious conservatives have applauded Mr. Trump’s position, but they should be alarmed. They apparently don’t realize that the same rules that would apply to Christian organizations would also apply to religious organizations serving Muslims and Jews and others. If Mr. Trump really does "totally destroy" the Johnson Amendment, he will also totally destroy the roadblock to politics that religious minorities in the United States must contend with.
Don’t Subsidize Partisan Work
There is another solution to the limitations religious clergy members complain about: Deny charitable status to religious organizations.
The federal government could allow churches to become de facto lobbying groups, which is what many right-wing organizations parading under the banner of religion, are already doing. And because of concerns about separation of church and state, they do this without the burden of disclosing their finances through the Form 990 informational return, which other tax-exempt groups must file with the IRS to demonstrate what they are doing with their money and how they are earning the right to tax-exempt status. Under today’s law, religious organizations are entitled to the benefits of being a charity with none of the responsibilities.
We could end the irony and unfairness of this situation by turning off the spigot, the source of the biggest subsidy of all: the federal government, which pours money into religion by offering donors tax deductions and offering congregations tax-exempt status.
That plan would allow Mr. Trump and religious conservatives to achieve their goal of allowing members of the clergy to speak "freely without retribution" and get taxpayers off the hook of paying for political partisan activities.
We would all be better off without the hypocrisy.
Doug White is a philanthropy adviser and the author of Abusing Donor Intent.