Trump’s plan to “totally destroy” the Johnson Amendment creates a huge campaign finance loophole for churches to exploit

Trump’s hard play for the religious right is a gift to big donors who want less transparency in campaign financing

By Sophia Tesfaye

Senior Politics Editor

Published February 3, 2017 7:10PM (EST)

  (Reuters/Brendan McDermid/<a href=''>Vibe Images</a> via <a href=''>Shutterstock</a>/Photo montage by Salon)
(Reuters/Brendan McDermid/Vibe Images via Shutterstock/Photo montage by Salon)

President Donald Trump appears steadfastly committed to his campaign promise to repeal one of the clearest legislative examples of the separation of church and state in this country, recently repeating his vow to allow churches to engage in political activity while retaining their current tax-exempt status — opening the door for religious groups to become big-time partisan players in U.S. elections.

According to the IRS' website, churches and other nonprofit organizations that are exempt from taxation "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." Specifically, ministers are restricted from endorsing or opposing candidates from the pulpit. If they do, they risk losing their tax-exempt status, under terms of 1954 legislation named for its principal sponsor, then-senator Lyndon Johnson. 

Churches, charities and educational institutions are tax-exempt under section 501(c)(3) of the IRS code, which not only exempts a group's income from taxation, but also allows it to receive tax-deductible donations.

Under the so-called Johnson Amendment, religious leaders remain free to engage in political and social speech outside of the church.

Still for many on the religious right, repealing the amendment appears to be an issue of religious freedom. And President Trump is determined to appease the evangelical base that propelled him into office.

“Freedom of religion is a sacred right, but it is also a right under threat all around us,” the thrice-married Trump told religious leaders at the National Prayer Breakfast Thursday, after he asked them to pray for his "Celerity Apprentice" replacement Arnold Schwarzenegger's ratings. “That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”

Even though only Congress can repeal the law, Trump has repeatedly pledged to personally do away with the restriction. Trump argued on the campaign trail that religious organizations "have much to contribute to our politics," telling a group of Christian leaders the amendment "prevents [church members] from speaking your minds from your own pulpits" — conflating political campaigning and religious worship.

He told a crowd in Iowa in August, “It denies your pastors their right to free speech, and has had a huge negative impact on religion.”

One of the biggest applause lines of the Republican National Convention last summer was Trump’s call to repeal the amendment. For the first time, the repeal of the half-century-old tax law was adopted into the official GOP platform.

Allowing churches to express political opinions isn't the main concern of critics of Trump's proposal to do away with the longstanding law, however. At issue is whether a tax-exempt institution can engage in electioneering and retain its tax-exempt status, according to Robert P. Jones, CEO of the Public Religion Research Institute.

“Church members could give tax-deductible donations to a church, which would then be used by the church to campaign for a specific candidate,” Jones told Salon. “It could effectively turn churches into campaign offices and pastors into party operatives.” A religious group could begin to release campaign ads, and church members could contribute to political candidates and write it off on their taxes, for example.

“It’s important to note that the Johnson Amendment applies not only to churches but to all 501(c)3 charitable organizations,” Jones added, extending the potential ramifications of Trump's push beyond the pulpit to campaign financing writ large. 

Allowing deductions would mean that the government would be subsidizing — through the tax code — the political activities and speech of churches and other tax-exempt organizations. As with most other deductions in our tax code, wealthier taxpayers in higher brackets would likely receive the biggest subsidies.

“Because churches have fewer reporting requirements than PACs, it would mean even less transparency in campaign financing,” Jones argued.

While traditional political organizations must disclose their donors, 501(c)(4) "social welfare" organizations — who are forbidden from spending more than half of their budgets on politics — do not.  Allowing charities and churches to engage in politics would almost certainly lead to a rush of dark money campaign spending by groups that don’t disclose their donors.

According to the watchdog group Citizens United for Responsibility and Ethics in Washington, "political donors and operatives would legally be able to shift many of their political activities to charities — and have a lot of incentives to do it," if Trump gets his way:

Most of the dark money spending currently done by the non-charitable section 501(c) groups would almost certainly move to charities, as would at least some of the super PAC spending. The ability to deduct what would effectively be political contributions would be a massive incentive to contribute to charities that engage in politics, instead of to other section 501(c) entities.  Even better, donors could still keep their contributions secret. Deductibility of contributions and secrecy similarly would motivate donors to switch from super PACs – and from candidates and political parties – to political charities.

Realistically, however, it will likely be an uphill battle for Trump to push a repeal through even a Republican-controlled Congress, although he could propose changes to the current tax code. (The Free Speech Fairness Act, which would modify the amendment to allow religious groups to engage in political expression, was introduced by Republicans in the House and the Senate on Wednesday.) The president could also effectively nullify the law by directing the IRS  to not enforce it, tax law professor David Herzig told The Washington Post.

Although as the Post also reported, the conservative legal group Alliance Defending Freedom has encouraged pastors to give explicitly political sermons in defiance of the law every week since 2008, none of the more than 2,000 Christian clergy who often mailed tapes of their sermons deliberately challenging the law have been punished by the IRS.

Trump's reassertion that he'll repeal the Johnson Amendment came on the same day White House spokesperson Sean Spicer confirmed that the president is considering a plan that, according to the leaked copy, would extend legal protections to “any act or refusal to act that is motivated by a sincerely held religious belief, whether or not the act is required or compelled by, or central to, a system of religious belief.” Trump's proposal would also provide tax-exempt status to religious groups who discriminate.

By Sophia Tesfaye

Sophia Tesfaye is Salon's senior editor for news and politics, and resides in Washington, D.C. You can find her on Twitter at @SophiaTesfaye.

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Campaign Finance Dark Money Donald Trump Johnson Amendment Money In Politics Religious Right