Trump Vows To 'Destroy' Provision On Tax-Exempt Organizations

NPR's Audie Cornish talks with George Washington University law professor Miriam Galston about the Johnson Amendment. It's a tax code provision that prevents tax-exempt organizations from engaging in political activities. President Trump says his administration will "totally destroy" it.

AUDIE CORNISH, HOST:

We're going to hear more now about the Johnson Amendment, the tax code provision that you just heard President Trump promising to destroy. The amendment was originally proposed by then-Senator Lyndon B. Johnson, and it became law back in 1954. Trump can't just undo it. Congress would have to repeal it. It says tax-exempt groups like churches and charities can't speak for or against particular political candidates.

Miriam Galston is a law professor at George Washington University. She studies policy on tax-exempt organizations, and she says there's always been some opposition to the amendment.

MIRIAM GALSTON: It's always been the position of some churches that free speech was at stake and that they had a right to say what they wanted to. I think initially, despite that feeling, they abided by the provision. It's a provision that affects not just churches but all charities. And there's an underlying policy rationale, namely, why should the Treasury, which means the taxpayers, subsidize the electioneering of exempt organizations?

So I think initially there may have been dissatisfaction, but there was no active opposition. That changed about five or 10 years ago when people began advocating that pastors advocate on behalf of particular candidates from the pulpit. And that job has been going on for a number of years with more and more pastors doing it.

CORNISH: At the same time, is this particular provision of the tax code enforced? We read a Pew study during this presidential election that found that something like 10 percent of people who go to church had heard clergy support or speak against a particular candidate. So is the IRS really doing much to enforce the law?

GALSTON: The law applies to churches and all other federally designated charities. There has been enforcement in the areas other than churches. The IRS has been reluctant to enforce against the churches for a number of reasons. You can consult them, but it seems obvious that when they attempted to enforce the prohibition, they got a lot of pushback from members of Congress. That doesn't make it legal. It just means that churches are doing it with impunity at the moment.

CORNISH: Now, charitable organizations are one of the few institutions that Americans still trust (laughter), and there are some who argue that repealing Amendment might change that - right? - that they would in effect become political entities.

GALSTON: I agree with that somewhat, but I disagree because the legislation that's been proposed so far has been very narrow. It only permits charities to make political commentary or advocate on behalf of a candidate in the course of carrying on their ordinary charitable activities and only if it doesn't involve an expenditure of funds or only a minimal expenditure.

For a church, while the clergyman is giving a sermon, the clergyman might speak on behalf of a particular political candidate. It does not mean that the church is free to hold a fundraiser on behalf of that candidate. So that is not going to change the character of a charity unless the provision is abused.

One other thing you ought to know is that there's an awful lot that they can do anyway without this new legislation in the way of assisting candidates. For example, they can talk about wedge issues that differentiate the two candidates in an election without ever naming anyone. And they can do that already, and that's not a problem. They don't need this new legislation.

CORNISH: Miriam Galston of George Washington University, thank you for speaking with us.

GALSTON: My pleasure.

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