Alternative Facts: Is the Executive Order on Free Speech Much Ado About Nothing?
May 3, 2017
In 1954 the “Johnson Amendment” was added to a bill enacted by Congress which became the Internal Revenue Code of 1954. The Johnson Amendment prohibits all organizations that are exempt from tax under Section 501(c)(3) of the Internal Revenue Code from participating or intervening in any political campaign on behalf of or in opposition to any candidate for public office. During the 2016 Presidential Campaign, then Presidential Candidate Donald Trump promised that he would make the repeal of the Johnson Amendment a priority if he was elected.
On May 4, 2017, President Donald Trump issued Executive Order titled “Promoting Free Speech and Religious Liberty” (the “Executive Order”). Many religious organizations hope that this Executive Order will effectively repeal the Johnson Amendment, providing freedom to address pressing moral and political issues without facing penalties under the Internal Revenue Code’s restrictions which prevent tax exempt organizations from engaging in activities that may be construed as “participating or intervening” in a political campaign. While the Executive Order provides a clear direction that no “adverse action” shall be taken by the IRS “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,” the extent of this protection appears to be greatly limited by the Executive Order’s language. Specifically, the Executive Order expressly limits this protection to “speech of [a] similar character” to that which, “consistent with law” ordinarily has not “been treated as participation or intervention in a political campaign” by the IRS. This reliance on existing precedent creates an open question as to whether religious organizations will have any greater flexibility. For instance, it remains clear that a religious organization can issue strong statements in favor of specific causes such as the right to life, and that a religious organization cannot urge its congregation to vote for a particular candidate; but does the Executive Order allow religious organizations to take actions that previously may have been considered suspect, such as distributing a list of candidates who are pro-life, without facing an adverse action from the IRS? The Executive Order, on its face, leaves this as an open question.