Nonprofit leaders and tax-policy experts said a new executive order that calls for the federal government to turn a blind eye to overt political speech by churches and faith leaders will have little material effect on how a 63-year-old law banning such speech is enforced.
That’s because it isn’t enforced.
“The position in the executive order is actually quite consistent with what the IRS does in terms of enforcement already,” said Michael Batts, a Florida nonprofit tax accountant whose clients include many churches and who supports loosening the ban. “The IRS has not attempted to enforce the law with respect to churches” and what is done or said in worship services.
In signing the executive order in the Rose Garden on Thursday, President Trump said, “This executive order directs the IRS not to unfairly target churches and religious organizations for political speech. No one should be censoring sermons or targeting pastors.”
But tax experts say there is hardly such an example to point to.
It is very much a letdown if you’re someone who wanted this. If you’re someone who is opposed to a change, maybe it is a bit of a relief, but it is a temporary relief.
“I don’t think, at least to my knowledge, there has been unfair targeting of churches,” said Roger Colinvaux, a law professor at Catholic University who specializes in nonprofit tax. “This is an area in which the IRS tends not to want to enforce the law anyway.”
What the executive order does do is attempt to make good, if only in a symbolic way, on a 2016 campaign promise by Mr. Trump to do away with the restriction on nonprofit political activity, often referred to as the Johnson Amendment. Created by Congress in 1954 and tweaked in 1987, it bars religious and other nonprofit leaders from endorsing candidates or spending money on political campaigns at the risk of losing nonprofit status. (Nonprofits can still advocate on issues relevant to their missions.)
The nonpoliticking law has long been in the sights of a small number of conservative Christians, who say it violates religious rights to free speech and their ability to counsel congregations on critical decisions, like how to vote. Any weakening of the law is strongly opposed by most nonprofit and religious leaders, but even many champions of upholding the law have said for years that the language is too vague and called on the Internal Revenue Service to better define what constitutes nonpermissible political speech.
The possible loss of tax-exempt status for faith groups amounts to a “crippling financial punishment. Very, very unfair,” Mr. Trump said Thursday. The executive order does not mention other types of nonprofits. Its release coincided with the National Day of Prayer, when President Trump met with religious leaders at the White House and a hearing on the Johnson Amendment on Capitol Hill.
‘Much Ado About Nothing’
For those who want to see the Johnson Amendment softened or done away with entirely, the executive order is not going to be especially satisfying, nonprofit tax experts said. Mr. Batts, who chaired the Commission on Accountability, which Republican Sen. Charles Grassley created in 2011 to clarify rules about religious and charitable organizations’ political activity, described it as a “very good move in the right direction.”
“It is not a substitute for the passage of the Free Speech Fairness Act in Congress, which would make it a matter of law and be more thorough and more specific than the executive order is,” he said. That legislation, introduced early this year, would change the Johnson Amendment to allow religious leaders to make political speech.
One action he would like the IRS to take now in response to the order is to update the language it uses in its guidance, such as Publication 1828 and Rev. Rule 2007-41, regarding what political activity is and is not permissible, Mr. Batts said.
Lloyd Hitoshi Mayer, a professor at the University of Notre Dame’s law school and an expert on nonprofit law, who described Thursday’s order as “much to do about nothing,” said some foes of the Johnson Amendment will see it as trying to pass the buck.
“This gives me nothing, and in some ways it gives me less than nothing, because now the president, the administration, can say, ‘Oh, we did something,’ when they really didn’t,” Mr. Mayer said.
In other words, the order relieves some pressure on the administration to act even though it changes little, he said.
“It is very much a letdown if you’re someone who wanted this. If you’re someone who is opposed to a change, maybe it is a bit of a relief, but it is a temporary relief,” Mr. Mayer said, noting that there could be action in Congress to change the law. “It is not like you have completely dodged a bullet here if you want to leave the Johnson Amendment in place. It is that the executive order turned out not to be the bullet you thought it was going to be.”
Options Considered
Mr. Colinvaux of Catholic University said the new order could have been a lot worse.
“Of all of the options that have been on the table about repealing or the tweaking of the Johnson Amendment, I would say this is about the least bad option.”
Surveys of nonprofit leaders and the public show that Mr. Colinvaux is in the majority in opposing the law’s elimination. Nonprofit associations, including the National Council of Nonprofits, the Baptist Joint Committee for Religious Liberty, and Independent Sector issued statements on Thursday saying the order moves nonprofits in the wrong direction.
“For 60 years, this law has played an essential role in maintaining public confidence in, and support for, the charitable community,” Independent Sector said in a statement. “It ensures that charities remain a nonpartisan haven, separate from politics, in our civil society.”
I don’t think I’ve ever known a pastor who endorsed a candidate; I’m not sure I know of any that have wanted to.
Tax law already allows nonprofits to advocate on issues related to their missions, even as it prohibits them from engaging in partisan political activity, the nonprofit lobbying group said.
“This is an appropriate distinction, as countless charities work every day to educate public officials on issues relevant to their mission and important to their clients, members, or communities,” Independent Sector said. It is an important, often misunderstood distinction that the new order only further muddles, Independent Sector said.
In April, 4,500 nonprofit organizations delivered a letter to congressional leaders calling on members to oppose any such changes.
“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.”
Strong Opinions
Surveys show most religious leaders also opposed changing the law.
“I don’t think I’ve ever known a pastor who endorsed a candidate; I’m not sure I know of any that have wanted to,” says Leith Anderson, president of the National Association of Evangelicals, which represents 45,000 local churches from nearly 40 denominations. “Like so many issues, there are people who hold strong opinions who get visibility and are therefore assumed to represent everybody — and often that’s not the case.”
About 90 percent of the association’s roughly 100-member board — made up of evangelical leaders at churches, universities, and other institutions — said in a February survey that they do not think pastors should endorse politicians from the pulpit. The survey did not ask specifically about the Johnson Amendment, however; some respondents said in written comments that while they would not endorse a candidate from the pulpit, they did not think there should be a law that restricts pastors from doing so.
Many evangelical pastors preach in areas where a congregation’s political beliefs are not uniform, says Mr. Anderson, who was a pastor at a Minneapolis-area church for 35 years. Mr. Anderson says he served parishioners who had a wide range of political opinions. The IRS restrictions on political endorsements allow pastors like him to avoid requests that they take stances on political candidates.
Lobbying Uptick
Any material change to the nonpoliticking law, said nonprofit tax experts, has to take place in Congress, and that is where many remain focused.
Republican lawmakers introduced two bills this year, one to do away with and one to loosen the Johnson Amendment. Rep. Kevin Brady, the Texas Republican who chairs the tax-writing House Ways and Means Committee, has said that the House tax bill will include a repeal.
“Places of worship across America need to be free to practice their faith without worrying about Washington or the IRS targeting their religious freedom,” Mr. Brady said at the Conservative Political Action Conference in February.
It has sparked a flurry of lobbying activity from the nonprofit sector. 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.
Still, many are dubious that any change will come. Mr. Mayer of Notre Dame cites two main reasons why he thinks it is unlikely. He first points to years of unsuccessful efforts by some House Republicans to repeal the Johnson Amendment. They weren’t even able to get most of their fellow GOPers to sign on, he said.
“That was when it was symbolic, because you knew it wasn’t going to get through the Senate and it wasn’t going to pass President Obama. But even so, the vote totals were shockingly low, 170-votes-in-favor kind of thing,” Mr. Mayer said.
And then there are the potential political costs to congressional members. While a few constituents in districts around the country might support changing the legislation, many more will not. Lawmakers who vote for a repeal face making a lot of voters unhappy.
Members of Congress will be asking themselves, “Do I really need to fight that battle in my district?” Mr. Mayer said. “Do I need to risk alienating some people that otherwise would be supportive of me?”
Peter Olsen-Phillips and Timothy Sandoval contributed to this report.
