At his first National Prayer Breakfast as President of the United States, Donald Trump said he will quote get rid of and totally destroy the Johnson Amendment, that provision of the tax code. The Johnson Amendment prevents houses of worship, like other not for profit organizations, from directly or indirectly participating in political campaigns. The law has been in effect since nineteen fifty four, when it was introduced by then Senator Lyndon Johnson, and repealing it would require an Act
of Congress. Here to talk with us about the Johnson Amendment and it's possible future are Alan Brownstein, a professor at U C. Davis School of Law, and Miriam Galston, a professor at George Washington University Law School. Alan, the Johnson omen has been around now for a very long time. UH churches seem to be able to participate in some political activities, but it prohibits them for being in campaigns.
What exactly are the parameters of the Johnson Amendment? Big Johnson Amendment prohibits five or one three C organizations and those are nonprofit organizations that get very favorable taxics and status. UH. It prohibits them from endorsing political candidates. Participating in a political campaign for any candidate for political offices. If they do that UH, in theory, they could lose their tax ex and status. On the other hand, it should be clear that this provision of the tax code is very
very loosely enforced. Its very unusual for the i r S to go after a religious organization on the grounds that they are unacceptably in permissibly participating in a political campaign. Miriam to that point, Since two thousand eight, pastors have openly defied the law on pulpit freedom Sunday, and many participating pastors even send their sermons to the i r S afterward. Only one has been audited by the i r S and none punished, according to the Washington Post.
So what would be the impact of taking this law away? The impact could be great. Be set up that you had incorrectly stated what the UH Johnson Amendment does. It prohibits participation in political campaigns by all charities, UH, churches, other religious organizations, are any kind of charity. The Sierra Club a ARPS charitable entity. So it would have an impact not just on churches, which, as you pointed out, UM, in connection with which the probition is not enforced lately.
Although the I R S used to audit churches and religious organizations, they don't anymore, but they still do audit other charities that engage in politics. Alan to to that point is there. It's not totally clear what the president is looking at, but can that they can churches be exempted from these requirements without also exempting those other charitable organizations.
I think if you try to amend the tax code to permit the churches religious organizations to engage in partisan political activity, but continue to apply the provision against secular charitable organizations, that would raise very serious constitutional concerns. It could be a violation of either the free speech laws of the First Amendment or the establishment course on the First Amendment. Basically attacked exemption is a subsidy, and it's been interpreted by the courts to be a form of
subsidies and more. The government generally has considerable discretion in determining which private organizations or activities it would choose to subsidize. Um there's a pretty strong argument that it can to do that in a viewpoint discriminatory way. That is to say, it couldn't decide only to subsidize Democrats and our Republicans. It couldn't decide only to subsidize right wing but not
left league and speakers or organizations. Um. And there's a long line of Supreme Court authority that has determined that religion is a viewpoint of speech. So there'd be a pretty persuasive argument than if you limited the ability of secular nonprofits to engage in Protestant political activity but committed religious speakers and expressive organizations to do so, that you'd be violating the free speech course in the First Amendment. And there's also an argument that doing so would violate
the establishment cause. And again we have some case President President that says that if you give an exemption, a tax exemption to religious speakers, in that case it was a religious publisher, but you don't give comparable tax exemptions to secular publishers, that that would violate the establishment cause.
I'm Michael Best with June Grosso and Greg Store. This is Bloomberg law, and we are talking about the Johnson Amendment, which prohibits UH not for profit entities, including religious organizations, from participating in political campaigns. The President says that he will destroy it in his words because in his view, it prevents clergy from speaking freely on politics and without
fear of retribution. We're talking to Alan Brownstein of the U. C. Davis School of Law and Miriam Galston of George Washington University Law School. Alan, one of the things that is interesting here is that people make donations to not for profit entities and they get a tax deduction, whereas for political donations they don't get that tax deduction. What would be the implications of allowing in the context of campaign contributions, what would be the implications of allowing UM not for
profits like churches to speak out in political campaigns. Well, if you repeal the Johnson Amendment and allowed all of five and one seas three organizations to commit essentially an unlimited amount of their resources to political campaigns, you would essentially make donations for the election of political candidates tax
deductible UM and memories is two concerns. One is, tax deductions for charity are only valuable the donors who itemize their tax returns, who basically earn enough income to take advantage of these deductions. So what you would be doing is creating a two tier system. Americans who are wealthy enough to take charitable deductions, would be able to contribute more money more after tax money UH to political candidates and campaigns. Then would less wealthy Americans with lower incomes
who can't take advantage of charitable deductions. The other consequence of this repeal would be that you would simply infuse
more money into election campaigns. If someone donated a thousand dollars during the last election campaign, either for her Hillary Clinton or for Donald Trump, UM, if they could and that donation would not be tax deductible or undercurrent rules, UM, if you repeal the Johnson Amendment, UH, they could donate fourteen hundred dollars to a five or one rec organization that is going to use all of that money for
an electoral campaigning UH. And you've increased the amount that they could contribute to political campaigns by So you know, if you think that there really isn't enough private money in politics and in elections, and it would be good to have a great deal more money being contributed to election campaigns, um, and then you might support this repeal.
What you take on this, I mean, are we create potentially creating It almost sounds like this whole new category of super duper packs here well, I agree with Alan that money would shift from sea fours and from to threes if the Johnson Amendment were repealed. But I have
UH two caveats that are important. One is that in order to be a title to a charitable exemption in the first place, UM, an entity has to have a charitable mission, and it cannot have even one substantial non charitable purpose, even one UH substantial UH non charitable purpose, and it's no longer entitled to the exemption. Furthermore, UM, it's also the case that if I a charity provides more than a small amount of private benefit, it would
also no longer be entitled to tax exemption. So the idea that UM money could flow as freely through a charity as it would flow through a UH pack, I think is UM exaggerated. The second point I wanted to make is that UM the main, although not the only bill that's been introduced today was by Steve Scale, and it's it's called legislation to repeal the Johnson Amendment. But when you read it, you see it's extremely narrowly crafted.
Organizations charitable organizations are only permitted to engage in political UH speech in the ordinary course of the organization's regular and customary activities in carrying out its charitable purpose um. And if any expenditure is only diminimus. So what that means is if we um if this is the kind
of proposal for repeal that would get enacted. A pastor could make comments from the pulpit um as long as they were part of a servant, but not hold a special event at the church to promote one or another candidate.