Executive Order Relaxes Johnson Amendment Enforcement

An executive order (EO) signed by President Donald J. Trump this morning could welcome more overt political activity by charities and churches. It also appears to open the door for more litigation against his administration.

The White House on Wednesday released a document titled, “Executive Order: Promoting Free Speech and Religious Liberty,” which offered three bullet points:

  • Declares that it is the policy of the administration to protect and vigorously promote religious liberty;
  • Directs the Internal Revenue Service (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; and,
  • Provides regulatory relief for religious objectors to the Affordable Care Act’s preventive services mandate, which was challenged in court by Hobby Lobby and some Catholic agencies.

The full EO was released this afternoon and what it actually does could be up for debate. The EO states that it will be the policy of the executive branch to “vigorously enforce federal law’s robust protections of religious freedom,” and will honor and enforce those protections. It goes on to state that the Treasury Secretary will ensure that the department does not take adverse action against any organization for “speaking about moral or political issues from a religious perspective, where speech of similar character has not ordinarily been treated as participation or intervention in a political campaign on behalf or opposition to a candidate for office.”

Another section directs the Treasury Secretary, Labor Secretary and Health and Human Services Secretary to consider “issuing amended regulations, consistent with applicable law to address conscience-based objections to the preventive-care mandate.”

Catholic Charities USA issued a statement “welcoming the administration’s commitment to protect and promote religious liberty and its addressing of the Health and Human Services’ contraceptive mandate.” The organization said it looks forward to reviewing details of the EO and is hopeful that “its application will allow Catholic Charities agencies to continue to serve all their clients in accordance with their inherent dignity while at the same time preserving the freedom of these agencies to serve in conformity with our beliefs,” said Sister Donna Markham, president and CEO.

Nan Aron, president of Alliance for Justice (AFJ), described the executive order as “vague and foreboding, a dangerous mess that is most likely unconstitutional.” The order “sends threatening signals about how certain religious speech and religious institutions might be allowed to skirt laws imposed on others, and to impinge on citizens’ rights in the future,” she said.

“The implications for health care are especially concerning, as it leaves the door open for care that conflicts with some religious beliefs, such as contraception, to be curtailed by providers, insurers or employers.”

American Civil Liberties Union (ACLU) leaders promised to challenge the order in court while some nonprofit leaders disagreed with inviting churches and charities into overt political activity.

Trump said last year that he would work to repeal the Johnson Amendment, which prohibits tax-exempt organizations, including churches and other charities, from explicitly endorsing candidates for public office or electioneering. Charities are allowed to weigh in on policy or public questions but are not allowed to explicitly endorse candidates for office. There are those in the sector who say that the vagueness of the federal rule results in self-censorship by churches for fear of breaking the law.

“Under this rule, if a pastor, priest or imam speaks about an issue of political or public importance, they are threatened with the loss of their tax-exempt status, a crippling financial punishment. Very, very unfair. But no longer,” Trump said during a signing ceremony in the White House Rose Garden. “This financial threat against the faith community is over,” he said, claiming that the EO will prevent the Johnson Amendment from interfering with a church’s 1st Amendment rights. “So you’re now in a position where you can say what you want to say. And I know you’ll only say good and what’s in your heart. And that’s what we want,” Trump said.

“In America we do not fear people speaking freely from the pulpit. We embrace it,” Trump said, pointing to a “rich tradition” of speaking from the pulpit, particularly African-American churches during the Civil Rights era.

“We must never infringe on the noble tradition of change from the church and progress from the pew,” Trump said. “Under my administration, free speech does not end at the steps of a cathedral…or any other house of worship,” he said.

“Despite the labeling, the portion of the executive order regarding the Johnson Amendment has nothing to do with free speech or freedom of religion,” said Tim Delaney, president and CEO of the National Council of Nonprofits. “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 by participating in any political campaign on behalf of or in opposition to any candidate for public office,” he said.

“We are a country of laws, not a country that tolerates a wink and a nod from a partisan official telling the IRS to effectively ignore laws properly passed by Congress decades ago,” Delaney said. “The Constitution does not empower a president to line-item veto a few lines from longstanding law that his political allies find inconvenient,” he said.

ACLU Executive Director Anthony Romero described the president’s efforts to promote religious freedom as “thinly-veiled efforts to unleash his conservative religious base into the political arena while also using religion to discriminate. It’s a dual dose of pandering to a base and denying reproductive care.”

The executive order enables private employers to use religion as a pretext to deny reproductive healthcare to their employees, according to the ACLU.

Independent Sector President and CEO Daniel Cardinali said the latest executive order only creates more confusion around what charities are allowed to do. “While the executive order frames this issue as one of religious liberty, the Johnson Amendment applies broadly to all 501c3 organizations, including churches. The Internal Revenue Code permits charities to interact with public officials on a limited basis while strictly prohibiting them from engaging in political activity. 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,” he said in a statement.

“Yet this distinction is not always clear under current law, and this lack of clarity has consistently discouraged many charitable organizations from engaging in critically important advocacy work,” Cardinali said. “Rather than taking steps to clarify these rules, this executive order only adds to the complexity and confusion around what charitable organizations, including religious institutions, are allowed to do under the law.”

Other nonprofits similarly panned the executive order, labeling it “misguided” and “unfortunate.” The president’s order “blurs an important distinction that has existed for over 60 years between tax-exempt institutions and political organizations,” Council on Foundations President and CEO Vikki Spruill said in a statement. “It swings the door wide open for unchecked ‘dark money’ to flow through nonprofit organizations, allowing for unlimited, anonymous, tax-deductible political donations,” she said.

Tax-deductible political donations were a point raised by several Democratic Congressmen during a subcommittee hearing earlier in the day on churches and free speech.

“This hearing is not about free speech, it’s about money,” said Gerry Connolly (D-Va.), ranking member of the House Subcommittee on Government Operations. Repealing the Johnson Amendment would allow tax-exempt 501(c)(3) organizations, including churches, and their contributors to participate in political campaigns with their tax deductions, he said. “Taxpayers would be subsidizing partisan, political contributions,” Connolly said.

Others said the executive order would have little effect because only Congress has the power to make changes to the Johnson Amendment, which currently does not prevent churches or charities from speaking out on issues. It does, however, “prohibit fat cat political spenders from laundering contributions through churches and nonprofits,” U.S. Rep. Raja Krishnamoorthi (D-Ill.) said.

The Alliance Defending Freedom has been actively trying to end enforcement of the Johnson Amendment since 2008 through “Pulpit Freedom Sunday.” ADF Legal Counsel Christiana Holcomb testified during the hearing that pastors want to follow the law but are confused about the law’s parameters, resulting in self-censoring out of fear of violating the law. “Put simply, the status quo is untenable,” she said, endorsing The Free Speech Fairness Act (H.R. 781).