President Trump signed an executive order Thursday intended to allow nonprofit religious organizations to engage in overt political activity, including endorsing candidates.
“This executive order directs the IRS not to unfairly target churches and religious organizations for political speech,” Mr. Trump said. “No one should be censoring sermons or targeting pastors.”
The president did not mention other types of nonprofits, which are also subject to the Johnson Amendment, a 63-year-old law that prohibits charitable organizations, religious and otherwise, from endorsing candidates or spending money on political campaigns.
It wasn’t immediately clear what real-world effect President Trump’s order would have, or if it would withstand legal challenges. Changing the tax law requires a vote by Congress. What’s more, the law has gone largely unenforced for years, even as some conservative Christian leaders tried to draw the Internal Revenue Service into a court fight by openly flouting the Johnson Amendment by making election-year endorsements during sermons.
“It is unclear how the IRS’s behavior would change if at all with this,” said Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty, which is opposed to weakening the rule.
Surveys of nonprofit and religious leaders show most strongly oppose loosening the law, fearing it would undermine the credibility of all nonprofits and allow campaign operatives to abuse 501(c)(3) tax status by setting up organizations that are purely political. While nonprofit leaders characterized the president’s order Thursday as at least partially symbolic, some decried what they described as a move that drags the country’s charitable and religious organizations into partisan politics.
“Despite the labeling, the portion of the Executive Order regarding the Johnson Amendment has nothing to do with free speech or freedom of religion. And, contrary to President Trump’s assertions at the signing ceremony, the Johnson Amendment has nothing to do with talking about policy issues of the day — it only prevents 501(c)(3) organizations from partisan electioneering,” the National Council of Nonprofits said in a statement.
The new order — President Trump’s 44th — appears to be an attempt to make good, if only in a symbolic way, on a 2016 campaign promise to some religious leaders to do away with the limits on their political activity. It coincided with the National Day of Prayer, which saw the president meeting with religious leaders at the White House, and a hearing on Capitol Hill on the Johnson Amendment.
Speaking in the Rose Garden on Thursday, the president said that as he crisscrossed the country during the 2016 campaign, faith leaders told him the federal tax code kept them “from speaking their minds.” He promised to do something about it if elected.
“For too long the federal government has used the power of the state as a weapon again people of faith,” Mr. Trump said. “Bullying and even punishing American for following their religious beliefs.”
The possible loss of tax-exempt status for faith groups amounts to a “crippling financial punishment. Very, very unfair,” he said.
Fierce Opposition
Religious and charity leaders who oppose loosening the tax code to allow churches or other tax-exempt groups to engage in overt politicking warn of the introduction of political money into nonprofits.
“It would be disastrous,” Hadar Susskind, senior vice president of government relations at the Council on Foundations, said late last month of a possible elimination of the law. “If you repealed the Johnson Amendment, it would literally allow for unlimited, anonymous, tax-deductible political donations. And that would be the end of the whole sector.”
In April, 4,500 nonprofits delivered a letter to congressional leaders calling on members to oppose any attempt to weaken the law.
“It shields the entire 501(c)(3) community against the rancor of partisan politics so the charitable community can be a safe haven where individuals of all beliefs come together to solve community problems free from partisan divisions,” the letter read. “It screens out doubts and suspicions regarding ulterior partisan motives of charitable organizations, as undoubtedly would occur if even just a few charitable organizations engaged in partisan politics.”
Looking for a Court Battle
Even before President Trump’s order, nonprofit leaders and tax-policy experts who have long followed the Johnson Amendment debate said political conditions are as conducive as they have been in many years for the law to be changed. Previous efforts have fallen flat, including North Carolina Republican Rep. Walter Jones’s nearly annual introduction since 2002 of bills to scrap the politicking restrictions.
Some conservative Christian clergy have sought for years to bait the IRS into a legal fight on the constitutionality of the ban, putting on what they called Pulpit Freedom Sunday in which pastors intentionally and loudly violated the law. The tax agency ignored them.
Earlier this year, lawmakers introduced two different bills related to the Johnson Amendment. One proposal would do away with it entirely; another, the Free Speech Fairness Act, introduced in February, would allow charitable and religious groups to endorse or oppose candidates without fear of losing tax-exempt status so long as their political actions stayed within the “ordinary course of the organization’s regular and customary activities.” Any additional spending on such activities would have to be negligible, or a “de minimis” amount.
In February, Rep. Kevin Brady, the Texas Republican who chairs the tax-writing House Ways and Means Committee, said he would write language into his tax bill to repeal the Johnson Amendment.
The momentum to amend or scrap the measure is due in no small part to Mr. Trump, who has given the issue unprecedented presidential attention. In speech in February at the National Prayer Breakfast in Washington, he said he would “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.” As a candidate in September 2016, he joked to Christian leaders that repealing the law would help get him into heaven.
Lobbying Uptick
Indications that the new administration would roll back the law sparked a flurry of activity by groups that lobby for nonprofits and on faith-related issues. At least 14 organizations advocated for or against the law in the first three months of 2017, according to lobbying disclosures made to the Senate.
Most groups active on the Johnson Amendment — including the Jewish Federations of North America, Americans United for Separation of Church and State, and Independent Sector — opposed its repeal. They also wielded more cash ($737,312) than those supporting repeal ($27,170), which include the Family Research Council and the Christian Coalition of America.
It’s not possible, however, to tell exactly how much of that cash went toward work on the Johnson Amendment. Lobbying reports show the total amounts that a client paid its lobbying firm in a quarter, which generally includes work on multiple issues.
Peter Olsen-Phillips contributed to this story. The article has been updated with quotes from President Trump and nonprofit leaders.
