For some reason, the religious right strongly backs Donald Trump. Whatever. Something something Israel something. He’s preparing for the end of days or some such nonsense. Heck, he actually may be bringing about the end of days. Either way, Trump understands the old saw that you dance with the ones what brung you, so he’s pandering to the religious right in several respects, such as attempting to allow discrimination as an expression of “religious freedom.” I’m sure there won’t be any litigation over that, or anything. But he’s also expected to sign an executive order today which is supposed to give pastors and church leaders more leeway to campaign on behalf of political candidates.
This might turn out to be one of those times that Trump followers end up wishing the guy understood a little more about the law. I’m a lawyer, so let me give some free legal advice to whatever pastor or other clergy type individual that might be planning to start overtly campaigning for whatever favored candidate you have: Don’t.
The prohibition that Trump is attempting to get to through his order is called the “Johnson Amendment.” It’s a part of the tax code that’s familiar to anyone in the nonprofit sector. Section 501(c)(3) of the IRS code exempts certain organizations from paying taxes, and also lets the organization’s donors deduct any donations they make to the organization on their own tax form. Many or most charities, and many or most churches, are recognized as 501(c)(3) organizations.
Not having to pay taxes is a big deal, and effectively acts as a subsidy from the federal government . It’s Uncle Sam’s way of saying that it won’t take the revenue from you it’s otherwise entitled to, in an effort to encourage people to give money to nonprofit groups. But there’s a string attached. If you opt to become a 501(c)(3) nonprofit, you 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.” Basically, this restriction ensures that the government does not wind up effectively subsidizing political campaigns. It also, incidentally, acts to prevent unconstitutional entanglements between church and state.
Seeking tax exempt status is a voluntary act, of course. An organization can accept these conditions and receive the benefits that come with them, or it can retain the ability to actively promote political candidates by not opting to become a 501(c)(3). There are other options also, because an organization can seek tax exempt status under other provisions of the tax code that don’t prevent it from advocating for candidates, although on less favorable terms than section 501(c)(3).
This is Trump’s attempt to let churches have it both ways, and enjoy the most-favored tax status while also not having to comply with the conditions that come with it. According to a fact sheet the Trump administration distributed last night, the new executive order “directs the IRS to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit.”
This of course is a distortion of the facts. The tax code does not prevent pastors from speaking about matters of political concern or even about people who are running for office, so long as they do not do so in a way that actively supports or opposes a particular candidacy. Just ask any pastor who rails against abortion right from the pulpit.
But Trump can’t just sign an order and make the law go away. Only Congress can change the conditions present in section 501(c)(3). So all the executive order can do is direct the IRS not to enforce the law against pastors who violate the tax code in certain ways.
That’s just fine, for as long as Trump is in office. But you can expect a Democratic successor to rescind that order and direct the IRS to resume enforcement actions the instant Trump leaves the White House.
And God willing, that will be in a matter of months. Hallelujah and amen, brothers and sisters.