Originally published on Forbes.com.
President Trump promised that he would “get rid of and totally destroy the Johnson amendment”, which limited the ability of churches and other 501(c)(3) organizations to engage in political activity. Does the executive order issued today deliver on that promise? Yes and no. Yes by Art of the Deal standards, otherwise no.
Truthful Hyperbole
When I heard candidate Trump speak in Worcester, a big take away was to read Art of The Deal. Regardless of whoever actually wrote it and whether he has actually read it himself, that book definitely channels him. Everything makes a lot more sense once you have read Art of the Deal. Think Big: Make It Happen in Business and Life will also help. In terms of whether the Johnson amendment has been destroyed by the executive order. Well, of course, it has:
The final key to the way I promote is bravado. I play to people’s fantasies. People may not always think big themselves, but they can still get very excited by those who do. That’s why a little hyperbole never hurts. People want to believe that something is the biggest and the greatest and the most spectacular.
I call it truthful hyperbole. It’s an innocent form of exaggeration—and a very effective form of promotion.
Once you mix in the hyperbole, you realize that the Johnson amendment that everybody thought was tough is a 97-pound weakling and that the Executive Order is Chuck Norris.
Maybe Not So Much
In reality, the executive order does not seem to do very much. It would have been amazing if it did because the IRS has not really been doing anything about church political activity. As Paul Streckfus commented this morning in the EO Tax Journal:
In a strange twist (so what else is new in the EO world), President Trump is expected to sign an executive order today directing the IRS to exercise “maximum enforcement discretion” regarding the Johnson Amendment, according to the White House. Since the IRS has been practicing minimal enforcement of the politicking ban, doing any less enforcement will be a challenge. When you’re already doing nothing, how do you go to doing less than nothing?
The Order
Here is the part of the executive order relevant to the Johnson amendment.
All executive departments and agencies (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. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury. As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.
The order differs from the version leaked earlier that is available here. The draft order also did not want the Treasury to bug anybody because of the belief:
that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalent refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.
They really needed that part about “reserved for such a marriage” probably had to go as we now have a President who in Think Big bragged about sleeping with married women.
Geraldo Rivera is a friend of mine, but he did something which I thought was absolutely terrible and he admits it was a mistake. He wrote a book naming many of the famous women that he slept with. I would never do that— I have too much respect for women in general, but if I did, the world would take serious notice. Beautiful, famous, successful, married— I’ve had them all, secretly, the world’s biggest names, but unlike Geraldo I don’t talk about it.
So if your minister gives sermons telling you not to vote for people who brag about sleeping with married women, you can call the IRS with confidence.
The other difference with the leaked order is that the leaked order indicated that the Secretary of the Treasury and the Commissioner of Internal Revenue should promptly propose for notice and comments new regulations consistent with the policy. And we all know that regulations are a bad thing that we should have fewer of not more.
Overall
It is hard to see what the IRS can change in response to this order. The most recent detailed guidance I know of is Revenue Ruling 2007-41 which teaches about the rules by way of 21 examples. The examples center on the organization or its officers in effect explicitly saying “Vote for Joe”. The officers can say “Vote for Joe” as long as they make it clear they are not speaking in their official capacity and are not using organizational resources. It is not clear that the Executive Order requires any revision to that ruling, but it would not surprise me if there is somebody in the Chief Counsel’s office checking on that now.
Prospects Of Litigation
The Freedom From Religion Foundation reportedly will be filing a lawsuit about the order as will the ACLU. My amateur prediction is that any such lawsuits will founder on the rock of standing. But we will see.
Professor Samuel Brunson of Loyola University Chicago wrote me:
First, the EO doesn’t seem to do anything substantive. It just, well, “codifies” isn’t the right word, but it basically codifies current IRS practice. I’m not sure that it prevents the IRS from doing anything that it can currently do.
That said, the ACLU has announced that it’s going to challenge the EO. But I think meeting the standing requirement is going to be really hard. Even if every single religious organization in the US starts endorsing candidates, it’s hard to see how that creates the type of injury that grants standing. Maybe an imaginative litigator can find a way, but I think it will be a stretch.
Professor Edward Zelinsky of Yeshiva University thanked me for sending him a link and kept his comment to “It is even less substantive than I thought.”
Paul Steckfus of EO Tax Journal wrote me:
Peter, I don’t know who might have standing to challenge the Trump Administration’s refusal to enforce a law passed by Congress, i.e., the Johnson Amendment.
In the EO area, the case that comes to my mind is Bob Jones University v. United States. The underlying issue was BJU’s claim that the IRS did not have the power to revoke BJU’s exemption under section 501(c)(3). The IRS, represented by the Justice Department, lost at the district court level but won at the circuit court level. BJU then got cert from the Supreme Court, but then the Reagan Administration decided to concede the case, asking the Supreme Court to vacate the circuit court’s decision that supported the IRS’s revocation. Instead, the Supreme Court, in an 8-to-1 decision, sided with the IRS and affirmed BJU’s revocation even though the Reagan Administration wanted the Supreme Court to rule for BJU and against the IRS. In effect, you had the government arguing against the government in the Supreme Court. Not exactly analogous to the current situation, but perhaps an indication of what might happen if Trump’s order were challenged in court.
Professor Adam Chodrow of Arizona State University wrote me:
Trump (or his lawyers) has carefully instructed the IRS not to interfere with legitimate activities. While this may in fact lead to non-enforcement in the face of violations, which is already pretty much the status quo, it does not instruct the IRS to ignore violations. Thus, it seems unlikely that the order will be subject to challenge. This seems mostly symbolic.
Looks Like Conservatives Are Unimpressed
David French of the National Review is extremely underwhelmed by the order.
Fresh on the heels of a budget deal that fully funds Planned Parenthood, Donald Trump has signed a religious-liberty executive order that — if reports are correct — is constitutionally dubious, dangerously misleading, and ultimately harmful to the very cause that it purports to protect. In fact, he should tear it up, not start over, and do the actual real statutory and regulatory work that truly protects religious liberty.
Gee, Dave, stop holding back. Tell us how you really feel.
The Alliance Defending Freedom which sponsors Pulpit Freedom Sunday, although positive, only gives President Trump credit for providing hope, but leaves his promise unfulfilled.