Trump Executive Action Promoting Religious Liberty


1954 Johnson Amendment


By: John T. Floyd


The Johnson Amendment of 1954 is a provision to the U.S Tax Code that prohibits certain political activities by religious and other non-profit organizations. According to the Johnson Amendment, religious institutions and other nonprofit organizations which receive a tax exemption are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf (or in opposition to) any candidate for elective public office.”


In the wake of the Johnson Amendment, Congress would reaffirm and strengthened the prohibition of political activity by 501(c)(3) organizations, most recently in 1987 with the active support of President Ronald Reagan.


And these prohibitions continued to enjoy support from the courts, as the D.C. Circuit Court of Appeals proved in 1999 when it held that “the government has a compelling interest in maintaining the integrity of the tax system and in not subsidizing partisan political activity, and Section 501(c)(3) is the least restrictive means of accomplishing that purpose.”


Religious organizations claiming tax exempt status cannot accept or donate funds to any one political candidate or campaign. They are also strictly prohibited from endorsing specific candidates from the pulpit. However, it is important to note that the Johnson Amendment does not prohibit non-profit and religious organizations from participating in politics.


These organizations are allowed to encourage individuals to participate in elections, hold voter registration drives, and speak about political and social issues that could be of interest to the congregation. Additionally, many tax exempt organizations (such as churches), are still allowed to publish “issue guides” for voters, as long as they do so without endorsing a specific political campaign.


President Trump Signs Executive Order Contrary to Law


On May 4, 2017, Donald Trump signed the Presidential Executive Order Promoting Free Speech and Religious Liberty. First and foremost, this executive action is designed to “vigorously enforce Federal Law’s robust protections for religious freedom” (The White House). One of the stated goals of this order is to protect federal employees and those contracting with the federal government who refuse to follow any law that conflicts with their personal religious beliefs. For example, the executive order arguably instructs agents of federal government to turn a blind eye to tax exempt religious institutions who refuse to comply with certain provisions in the Affordable Care Act that provides employees and staff with birth control.


IRS Ordered to Take No Adverse Against Religious Organizations


This executive order also commands that the Department of Treasury “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” (The White House). This is where things get murky in regard to the Johnson Amendment, which still prohibits non-profit and tax-exempt organizations from directly or indirectly participating in political campaigns. This order appears to prevent churches and non-profits from losing their tax-exempt status if they involve themselves politically.  However, this appearance may be just that, appearance.


Johnson Amendment Still in Effect


As far as the amendment is concerned, it is still in effect. This is because an executive order cannot remove an amendment, only congress may do that. However, it does reveal that the amendment is being threatened by the current White House administration and could be the target of a push for repeal.


This executive action is problematic in many ways. The stated intention of this order is to end religious discrimination, yet it allows the religious right to discriminate against members of the LGBTQ+ community and those who require reproductive care. It also about money and politics.


Dirty Money from Religious and Tax-Exempt Organizations


If the Johnson Amendment is further threatened and eventually overturned, there would be major implications in the realm of campaign finance. Religious entities could become even bigger players in politics because they would be allowed to raise tax-free donations that would then be used to support political candidates and campaigns. This would surely blur the line between church and state and bring dirty political money into our houses of worship.


If the limitations on political activities by charities and places of worship through the Johnson Amendment are rolled back, the consequences for the nation’s elections process will be severe. As Robert P. Jones, CEO of the Public Religion Research Search Institute said: “Church members could give tax-deductible donations to a church which would then be used by the church to campaign for a specific candidate. It would effectively turn churches into campaign offices and pastors into party operatives.”


In conclusion, this executive order is more symbolic than substantive. The IRS is not allowed to expand political restrictions against non-profit and religious organizations, yet it may still restrict the activity it considers political. The current restrictions have not been eased.


So, what can religious entities and non-profits do in the political sphere?


A non-profit may engage in political action if they do their best to ensure that their practices are non-partisan. For example, a religious leader could allow candidates to speak to the congregation if they are on message (not speaking about their individual campaigns).  Tax exempt religious organizations can also allow political candidates to speak directly to their congregations about their campaigns, if the opposing side to the contest is invited to do the same.


Educating the Community


Non-profits may help educate the public about issues that affect the community and those served. They may do this through voter education activities and candidate forums. They can publish and distribute voter guides as long as they do not endorse a specific candidate. They may also lobby for legislation if they do not spend a significant amount on these efforts and the lobbying remains “germane to the organizations programs”.


If the leader of a church makes an individual, personal endorsement (not on behalf of the church), their actions do not constitute as campaign intervention by the church. For example, Reverend William Barber II spoke at the 2016 Democratic National Convention. Barber could do this because he did it away from the pulpit without any of the church’s resources. When he began his speech, he started off by saying he was there as an individual not representing any organization. He spoke about faith and morality and their role in politics.  And that is just what we need a little more of in the swamp that has become our government.


John T Floyd is a board certified criminal defense lawyer in Houston, Texas.  He was the 2016 Democratic Candidate for Texas House District 29 and is an unapologetic progressive democrat with a passion for criminal justice reform, fully funded public education and equal rights.