The Johnson Amendment Survives Trump’s Executive Order
During the National Prayer Breakfast in early February, Donald Trump promised his religious allies that he would “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”
The Johnson Amendment – which was sponsored by Senator Lyndon Johnson and passed in 1954 – circumscribes the political speech available to religious entities registered as nonprofits. It ranks among the clearest legal lines separating organized religion and elected office, preventing religious charities from endorsing (or campaigning against) candidates while empowering the IRS to strip offending nonprofits of their tax-exempt status.
Earlier this month, Trump announced that he would soon sign an executive order designed to “vigorously promote religious liberty,” making good on his earlier promises to scuttle the law. What he actually signed, however, was a little less than what his religious supporters hoped for. This line from the order sums up its weakness:
All executive departments and agencies shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.
Effectively, the Johnson Amendment remains on the books. The ACLU, which was preparing to challenge the executive order should it greatly empower religious organizations to discriminate, released an official statement that deemed the document an “elaborate photo op with no discernible policy outcome.” As for now, the organization is not pursuing action in court.
Perhaps – as some pundits have pointed out – this is merely a rhetorical ploy intended to create the impression among Trump’s evangelical supporters that he’s expanding their political power. It could, of course, also be step one of a larger plan to dismantle the legal framework that enshrines the United States’ founding principle that church and state remain separate.
If the Trump Administration did eliminate the Johnson Amendment at some juncture, it would enable religious nonprofits – which already receive less IRS and government scrutiny than their secular counterparts – to deploy untaxed resources on behalf of candidates. This would be an unfair advantage, and would turn religious charities into processing plants for anonymous political funding.
Campaign financing is already shadowy, complex, and in dire need of reform. Striking down the Johnson Amendment is not going to better enable organizations to pursue their missions, but it will create a deep fissure of trust between organizations and the constituents they are supposed to serve.