Wednesday, August 3, 2016

Following up on my previous posts (here and here): The Atlantic, Trump Wants to Make Churches the New Super PACs: His Promise to Repeal the 1954 Johnson Amendment Isn’t About Free Speech—It’s About Cash:

Why have some religious conservatives decided to support Donald Trump for United States president? Leaders have named their reasons: He’s promised toappoint pro-life Supreme Court justices; he’s allegedly good at business. But they have also consistently cited something else, perhaps more unexpected: the tax code.

Trump has promised to repeal the so-called Johnson Amendment, a 1954 provision that prohibits tax-exempt organizations from participating in political activities. Proposed by then-Senator Lyndon B. Johnson and later revised by Congress, it keeps churches and other non-profits from lobbying for specific causes, campaigning on behalf of politicians, and supporting or opposing candidates for office.

While opponents of the Johnson Amendment often frame their objections in terms of free speech, the provision’s primary impact may be financial. Right now, the IRS makes a clear distinction between non-profit groups—from charities and universities to certain private schools and houses of worship—and political organizations.

If the Johnson Amendment were repealed, pastors would be able to endorse candidates from the pulpit, which they’re currently not allowed to do by law. But it’s also true that a lot more money could possibly flow into politics via donations to churches and other religious organizations. That could mean religious groups would become much more powerful political forces in American politics—and it would almost certainly tee up future court battles. ...

According to the Catholic University of America professor Roger Colinvaux, some critics have argued that the Amendment’s history is the best argument against it: Because it was an ad hoc measure written to satisfy one skilled legislator’s political needs, they say, it should be repealed. But, as Colinvauxwrote in 2012, this already was a long-standing issue by the time Johnson took it up—the legal limits around political activity for non-profit groups “had dogged charitable tax status from the inception of the federal-income-tax exemption for charitable organizations.” ...

Since 2008, a group of predominantly conservative, Protestant churches have participated in Pulpit Freedom Sunday—a day started by the conservative legal group Alliance Defending Freedom, when hundreds of pastors across the country give explicitly political sermons in protest of the IRS’s rule. The movement has been growing, and religious leaders will often mail tapes of their sermons directly to the agency to showcase their defiance. ...

Critics of the agency, including some progressive religious groups, argue that the IRS should put more resources toward enforcing the electioneering ban. The main question, said Alan Brownstein, a law professor at the University of California, Davis, is not whether religious groups and leaders should be able to express their views—it’s whether that activity should be subsidized by the government. “Pastors can say whatever they want, as can anyone else,” he said. “The question is whether a tax-exempt institution can say whatever it wants and retain its tax-exempt status, and whether the pastor as an official can use his or her position in the tax-exempt institution to engage in electioneering.” ...

What’s unclear about Trump’s promise to repeal the Johnson Amendment, though, is whether he’s only intending to push a repeal of the rule for religious organizations. A broad change to the provision would likely cause minor-level chaos within the U.S. political system: There would no longer be any meaningful difference between charitable groups and lobbying organizations. The government would effectively be subsidizing the political activities of all schools, charities, churches, and scientific-research organizations. On the other hand, if Trump’s theoretical administration pushed for a repeal only for religious groups, legal challenges would almost certainly follow. ...

For those Americans who want more, not less, religious influence on American politics, the repeal of the Johnson Amendment is the perfect campaign promise: a guarantee of increased political power, greater freedom of speech, and more control over political dollars for groups that widely feel their electoral influence slipping.

https://taxprof.typepad.com/taxprof_blog/2016/08/trump-wants-to-repeal-the-johnson-amendment-and-make-churches-the-new-super-pacs.html