Trump’s religious freedom order no more than a symbolic statement

According to White House officials the day before the release of President Trump’s Executive Order “Promoting Free Speech and Religious Liberty,” it was going to direct the IRS to exercise maximum discretion to alleviate the burden of the Johnson  Amendment, which prohibits religious leaders from speaker about politics and candidates from the pulpit.

The actual May 4 Executive Order took no such action.   Instead, it directs the Secretary of Treasury not to take any “adverse action against any individual, house of worship, or other religious organization” for “speech of similar character” that, “consistent with law,” the Department of the Treasury has “not ordinarily . . . treated as participation or intervention in a political campaign on behalf of (or in opposition to) any candidate for public office.”  

{mosads}The executive order tracks the campaign intervention language applicable to tax-exempt charities under the Internal Revenue Code.  The Internal Revenue Code, however, does not forbid all political activities for such organizations.  Charities, including leaders of religious organizations, may discuss legislation, for example, so long as such efforts do not become a substantial part of the congregation’s activities.

Moreover, the IRS has long exercised discretion in this sensitive area.  In a so-called Political Activity Compliance Initiative, the IRS examined possible political activity among some 100 exempt organizations in each of the 2004, 2006 and 2008 election cycles.  For these election cycles, the most common violations among thos­­e organizations selected for examination were distribution of printed documents supporting candidates, statements endorsing candidates during normal services, well-known individuals endorsing a candidate at an official church function, candidates speaking at official functions and distributions of partisan voter guides.

The Free Speech Fairness Act restores #freespeech, not ‘dark money.’ https://t.co/a32Qpfsp10 @thehill

— FRC (@FRCdc) May 10, 2017

Although the statutory prohibition by its terms is absolute such that even a de minimis amount of political campaign intervention could result in loss of exemption, the IRS did not revoke exemption in any of these cases.  Neither did it impose the available excise tax of 10 percent on campaign intervention expenditures. It instead issued written advisories because either the act of intervention was shown to be an anomaly or because the organization corrected the intervention and took steps to prevent future intervention.

During every election cycle, including the most recent, violations of the campaign intervention prohibition occur weekly.  Candidates, from both the right and the left, visit houses of worship to speak about their candidacy.  

Unless those houses of worship have also invited the candidate’s opponent to make a similar presentation — a very unlikely situation — the prohibition has been violated.  The IRS has never taken any action in these cases.  In fact, the Internal Revenue Code already includes special and particular procedural requirements before the IRS can audit a church.

“What does Trump’s religious freedom order actually do? Not much…” https://t.co/vXLPcxN279 pic.twitter.com/7NFcqfeNXc

— The Hill (@thehill) May 4, 2017

In situations that blatantly disregard the law, the Department of Treasury has taken enforcement action, and the courts have supported such efforts.

In 2000, in a case called Branch Ministries v. Rossotti the Court of Appeals for the DC Circuit upheld IRS revocation of the exemption of a church for campaign intervention. Four days before the presidential election in 1992, the church had run ran full-page advertisements in USA Today and the Washington Times urging Christians not to vote for then-Governor Bill Clinton because his position on such issues as abortion and homosexuality violated Biblical precepts.  The ads also solicited tax-deductible contributions.

This case demonstrated the sort of flagrant violation squarely within the zone of “ordinary” enforcement, and nothing in the May 4 executive order suggests that the IRS should cease enforcement of such glaring violations in the future.

As President Trump’s executive order acknowledges, it does not change applicable law.  It does not change the status quo.  As far as the tax law is concerned, it is no more than a symbolic statement. It may, however, suggest actions to come.

Ellen P. Aprill is the John E. Anderson Chair in Tax Law at Loyola Law School, Los Angeles, where she teaches Nonprofit Organizations and founded the Western Conference on Tax-Exempt Organizations.

The views expressed by contributors are their own and are not the views of The Hill.