Last week President Trump vowed to “get rid of and totally destroy” the Johnson amendment—a law that bars 501(c)(3) organizations including houses of worship from engaging in partisan political activity. Critics say repealing the law could turn religious institutions into dens of political dark money, channeling millions of dollars from anonymous givers through churches into political campaigns. Backers say it would merely free clergy to speak their mind about political issues of the day without fear of losing their organization’s tax exempt status or other penalties.
Which is it? Well, most likely neither. On one hand, there are Constitutional as well as statutory limits on the use of tax-exempt churches for political activities—curbs that could not be ignored even if Congress changed the tax law. On the other, many clergy already engage in some campaigning. And for the most part, the IRS looks the other way. Trump may be looking for a solution to a non-existent problem—at least if the issue is merely about clergy dropping a few partisan, political words into a sermon.
To a large degree, the consequences will depend on what the president means by “totally destroy.” Most congressional bills that address the issue (some around for more than a decade) fall far short of destruction, and thus carefully avoid the Constitutional traps.
Miriam Galston, a law professor at George Washington University and an expert in tax-exempt organizations, says that the ban on electioneering is one of many constraints on the ability of self- described religious organizations to get and keep tax-exempt status. They must qualify as a state law charity (and some state laws bar politicking by charities). They must meet the federal test of having a charitable purpose. They may engage in only insubstantial activities for non-charitable purposes. And, finally, they are barred from electioneering.
Most bills to amend the Johnson amendment focus on only that last limitation--curbs on political activity. Houses of worship would still need to meet the remaining tests to qualify as 501(c)(3)s, including the prohibition on non-charitable activities that are more than insubstantial. That restriction would appear to preclude houses of worship from turning themselves into money laundries for campaign activities.
Of course, given Trump’s comments, advocates could try to go beyond the current bills and lift all limits on political activity. In effect, they would not only allow religious organizations to engage in modest campaign activities aimed at furthering their tax-exempt purpose, they could open the door to much more expansive electioneering. But so far, at least, that is not what the bills do.
Then there are the Constitutional issues. Supporters of the repeal argue that the prohibition on charities campaigning infringes their right to free speech. But when a lobbying limitation on charities was challenged in court, the Supreme Court ruled that while non-profits have a right to speech, they have no right to subsidized speech. Thus, there is unlikely to be a Constitutional basis for insisting the prohibition be repealed.
Those who want to allow clergy to campaign also have to be watchful of the First Amendment, which prohibits the establishment of religion. Thus, they likely could not allow churches the freedom to engage in partisan politics but continue to prohibit other 501(c)(3)s from doing so. The Johnson amendment applied to all 501(c)(3)s and the congressional sponsors of bills to repeal the six-decade old law would do this as well (full disclosure: Repeal would apply to think tanks such as the Tax Policy Center and the Urban Institute as well).
Individuals and interest groups can already give to political campaigns and avoid public disclosure by contributing through social welfare organizations that are exempt through section 501(c)(4) of the tax code. However, they could not deduct the contributions. Making taxable gifts through a church could add some faith-based credibility to their cash, but there are already plenty of ways to funnel dark money to campaigns.
Despite the concerns of Trump and some conservatives, religious organizations today are given great latitude in their activities. Many accept tax-deductible contributions without bothering to apply for 501(c)(3) status and often without meeting the strict requirements of the tax law. Many clergy talk politics in their sermons without real fear of government punishment. Indeed, many conservative churches run a high-profile “Pulpit Freedom Sunday” explicitly aimed at flouting the law.
It might make sense to clarify some of these issues but vows to “totally destroy” the Johnson amendment could go well beyond what’s needed to protect the clergy’s right to free speech.
This story originally appeared on TaxVox.