The Johnson Amendment? Please Consider These Facts, Mr. President.

02/06/2017 08:18 am ET Updated Feb 15, 2017

President Trump, I read in your remarks from the Prayer Breakfast on February 2, 2017 that you plan to “get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”

In my previous note to you regarding campaign finance, I sort of breezed by the Johnson Amendment. I did that because it seemed clear to me from other remarks you made that repealing the Amendment, thus allowing more money into politics, would be anathema to our shared goal of getting money out of politics and thus draining the swamp. I see now my mistake. You are focusing on the prohibition against clergy making political statements from the pulpit. And I can see your point, sort of. But there’s more to this issue than you may be aware.

First, regarding freedom of speech, church revenue is tax exempt and also allows the donor a tax deduction. The prohibition on taking sides in political contests is a direct result of these tax preferences. Why? Because the tax exemption allows them to use public services such as water, sewage, roads, police, fire departments, clinics, etc. without paying for them. Churches could choose to forego tax exemption but they do not. The government could choose to not provide the option but it does not. Thus, for the privilege of not paying tax, and providing a tax deduction for donors, on an average of $119.3 billion dollars in annual revenue to religious organizations (”Giving Statistics.”, CharityStatistics.org, (accessed February 5, 2017)), we ask that clergy refrain from advocating the election or defeat of specific candidates. By the way, there is a carve out in the law for issues, so to talk about immigration or security or economic policy is fine. Churches may also provide “candidate guides” which list candidates and their voting history on issues deemed important so that their parishioners may make their own choice with information provided by their clergy. And, of course, there is no prohibition on a member of the clergy expressing their opinion when not behind the pulpit; the Johnson Amendment isn’t a gag order. My point is that our representatives of faith already “speak freely and without fear of retribution” and to the extent they are limited, it is by choice.

However, none of that is really the point. The point is that the Amendment prevents charitable organizations whose income is tax exempt and whose donors may claim a tax deduction, from taking that money and using it to influence elections. Because the donors to charitable organizations — only about 33% of which are religious — are not required to disclose their donors allowing this money into politics would create another loophole for “dark money”. Super PAC’s seem to get all the bad rap but at least Super PAC’s are required to disclose their donors, non-profits are not. Right now “dark money” comes in through 501(c)4 social welfare organizations (as I discussed before) and although they too are tax exempt their donors do not receive a tax deduction. Repeal of the Johnson Amendment, then, does nothing to increase the freedom of our religious representatives but it does allow donors, many of which are very rich, to get a tax deduction for using their money to influence elections!

Finally, I know how important national security is to you (which is another passion you and I share). The ban on foreign nationals making contributions to political organizations and committees was instituted as a security measure in 1966 as part of the Foreign Agents Registration Act (FARA). According to the Federal Elections Commission (FEC) website:

The goal of the FARA was to minimize foreign intervention in U.S. elections by establishing a series of limitations on foreign nationals.  These included registration requirements for the agents of foreign principals and a general prohibition on political contributions by foreign nationals.  In 1974, the prohibition was incorporated into the Federal Election Campaign Act (the FECA), [HTML] [PDF] giving the Federal Election Commission (FEC) jurisdiction over its enforcement and interpretation. (”Foreign Nationals”, FEC.gov, http://www.fec.gov/pages/brochures/foreign.shtml (accessed February 5, 2017)

However, charitable organizations have no such prohibition and, remember, their donors are not publicly disclosed, so repeal opens the door for foreign agents, perhaps even foreign governments, to influence U.S. elections. Not your intention at all and yet the total destruction of the Johnson Amendment would have the effect of loosening national security! WOW.

Mr. President, I realize you have no reason to follow my advice and in fact I don’t really believe that you have read, or will read, anything I write. However, I do pray that the message of what I’m saying here gets to you. This is not just my opinion, it is an opinion shared by the National Council of Nonprofits. Their opinions are much more learned (and lengthy) and worth your consideration. The Johnson Amendment needs to be strengthened and enforced more vigorously, not repealed. There is already too much money in politics and the repeal of the Amendment does nothing to increase religious freedom, or freedom of speech but it would fill the swamp with even more, darker and potentially more sinister, swamp creatures.

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