Confusion Abounds from Trump Executive Order on Religious Partisanship

In a Rose Garden ceremony, President Trump signed an Executive Order entitled, “Promoting Free Speech and Religious Liberty [1].” He made several claims at the ceremony, including, “We are giving our churches their voices back,” based on the unsubstantiated premise that the Johnson Amendment restricts religious speech. Numerous publications reported that the President has loosened the legal restrictions on endorsing or opposing candidates, or that he has instructed the IRS to stop enforcing the law against churches and other religious institutions. Others noted, however, that the text of the Executive Order lacks clarity and does a great disservice to law-abiding charitable nonprofits and religious institutions.

The responses of the charitable nonprofit and foundation communities were united in their opposition to the Executive Order. “We are a country of laws, not a country that tolerates a wink and a nod from a partisan official telling the IRS to effectively ignore laws properly passed by Congress decades ago,” stated Tim Delaney on behalf of the National Council of Nonprofits [2]. He continued, “The U.S. Constitution does not empower a President to line-item veto a few lines from longstanding law (in this case, the so-called “Johnson Amendment” that protects 501(c)(3) nonpartisanship) that his political allies find inconvenient.” Dan Cardinali of Independent Sector [3] expressed concern that the Executive Order “puts us on a fundamentally wrong path by effectively easing Johnson Amendment prohibitions against political activity for 501(c)(3) nonprofit organizations.” The Order “takes our country in the wrong direction by injecting politics and partisanship into the charitable sector,” agreed David Biemesderfer of the Forum of Regional Associations of Grantmakers [4]. Amanda Tyler of the Baptist Joint Committee for Religious Liberty [5] stated more forcefully that the Executive Order "is further evidence that President Trump wants churches to be vehicles for political campaigns."

Take Action

All people dedicated to maintaining nonprofit nonpartisanship can help the broad nonprofit and foundation communities by monitoring the effects of the Executive Order in your communities. Let us know [6] if you:

• See news reports or other evidence (such as church bulletins) of religious groups directly engaging in politicking by expressly endorsing or opposing candidates, spending on candidates, or promoting donations to them, etc.
• Feel frustration or experience a lack of influence because your organization cannot speak out for/against candidates running for public office in the thousands of elections this year while religious groups can under the Executive Order.

Status

To date, one organization has filed a lawsuit [7] challenging the Executive Order. Others may soon follow as charitable organizations begin to rely on it to violate the statutory ban on partisan election related activities.

In August, the Justice Department submitted a brief [8] in Freedom From Religion Foundation v. Trump, defending President Trump’s Executive Order on the Johnson Amendment while raising questions about the substance of the Order. The government admitted, “The text of the Executive Order itself does not purport to exempt religious organizations from the political campaign activity provisions of § 501(c)(3), nor does it privilege religious organizations over secular organizations. Rather, section 2 of the Order merely directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of the § 501(c)(3) restrictions.” The Justice Department’s brief appears to contradict the President’s Rose Garden signing ceremony statement: “You’re now in a position to say what you want to say.” Parties seeking to politicize charitable nonprofits, houses of worship, and foundations are likely to see the Justice Department acknowledgement as a reason to increase pressure on Congress to change the Johnson Amendment.

Why It Matters

Section 2 of the Executive Order [9] directs the Department of Treasury (and hence the IRS) to “not take adverse action against” individuals or organizations on account of their speech on “moral or political issues from a religious perspective” where similar speech has “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.” By its language, the Order appears to warn the government against changing its interpretation of what is “participation or intervention in a political campaign” as applied to religious speech.

Background

Section 501(c)(3) of the Internal Revenue Code [10] allows certain groups – including charitable, religious, and philanthropic organizations – to be exempt from federal income taxes and eligible to receive tax-deductible contributions in exchange for complying with three separate conditions. The first condition is that 501(c)(3) nonprofits cannot pay out profits to benefit shareholders or individuals. The second condition limits the amount of lobbying in which 501(c)(3) organizations can engage. The third condition – the so-called Johnson Amendment -- states that 501(c)(3) entities may “not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” This straightforward language simply means that 501(c)(3) organizations may not endorse or oppose candidates for public office or contribute money, time, and resources to help elect or defeat candidates.1 Other speech, such as commentary on legislation, social and moral issues, is in no way touched or restricted by the Johnson Amendment.

Statements in Response to the Executive Order

• National Council of Nonprofits [11]
• Arkansas Nonprofit Alliance [12]
• Baptist Joint Committee for Religious Liberty [13]
• California Association of Nonprofits [14] (CalNonprofits)
• CommonGood Vermont [15]
• CT Community Nonprofit Alliance [16]
• The Foraker Group [17] (Alaska)
• Forum of Regional Associations of Grantmakers [18]
• Independent Sector [19]
• Montana Nonprofit Association [20]
• New Jersey Center for Non-Profits [21]
• Nonprofit Connect [22] (Missouri)
• North Carolina Center for Nonprofits [23]
• Nonprofit Association of Oregon [24]
• Oklahoma Center for Nonprofits [25]

Additional Resources

• Protecting Nonprofit Nonpartisanship [26], National Council of Nonprofits
• It’s “Go Time” For Protecting Nonprofit Nonpartisanship, [27] National Council of Nonprofits, May 8, 2017
• Promoting Free Speech and Religious Liberty [1], Executive Order, May 2, 2017
• Debunking Five Common Myths About the Johnson Amendment [23], North Carolina Center for Nonprofits, May 10, 2017
• Community Letter in Support of Nonpartisanship [28], April 5, 2017
• Religious and Denominational Letter in Support of the Johnson Amendment [29], April 4, 2017