President Donald Trump signed an Executive Order on May 4 intended to protect religious leaders and organizations that speak out on political issues, while the House Oversight Committee held a hearing the same day on legislative proposals to eliminate the prohibition on church participation in election campaigns.
The precise language of the President’s controversial Executive Order does nothing to actually change the law. The Order directs federal agencies “to the greatest extent practicable and to the extent permitted by law” to “respect and protect the freedom of persons and organizations to engage in religious and political speech.”
“In particular,” the Order says, “the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign …”
Since the Internal Revenue Service has been very reluctant to enforce the prohibition against religious groups in the recent years, and since very few statements by religious organizations have ordinarily been treated as participation in political campaigns, the Order by itself does not make much of a legal difference. It was nevertheless touted by President Trump and many religious organizations as “giving our churches their voices back” by allowing them to participate in election contests. It was opposed by many groups opposed to such intervention.
The National Council of Nonprofits, which generated more than 4500 letters in opposition to changes in the so-called Johnson amendment that prohibits any 501(c)(3) organization from participating in elections (See Ready Reference Page: “IRS Issues New Guidance on Electioneering”), issued a new call to action on May 8, urging continued opposition to the changes.
YOU NEED TO KNOW
While legal analysts are correct that the Order does not actually change the current state of the law, it is likely to have significant implications in the real world. There wouldn’t be any need for the Order if all the present rules would continue to be enforced as written. Religious groups that want to be involved in politics are much more likely to think that they can endorse or oppose candidates without suffering an “adverse action” by the IRS. Reluctance to breaking the law may give way to a sense that there won’t be any adverse consequences even if they do.
Partisans who want a church to become more active in politics may donate more money —tax-deductible money— to the church so that it can be more actively involved. It will be interesting to see whether churches become more active. It will be impossible to see how much they spend doing so, or who gave them the funds to do so, because churches don’t have to file tax returns to disclose either their expenses or their donors. This is a significant step toward involving charities in politics and not one that is likely to be a benefit to the system. (See Commentary: “Keep Charities Out of Politics”)