The Move to Politicize Churches Is Back, and Conservatives Should Be Outraged

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The headquarters of the Internal Revenue Service in Washington

There are a lot of reasons why President Trump’s plan to let churches wade directly into partisan politics, which Congress may now approve as part of a must-pass spending bill, is a colossally bad idea.

Reversing the so-called Johnson Amendment, which bars churches and other charities from direct campaigning, would drag churches into the profane world of electioneering. It would damage public trust in charities, which could dry up their contributions. It would blow a hole in the election laws, by ushering in “pop-up” churches that come and go with the political cycles, boosting undisclosed expenditures, and letting donors write off purely political contributions.

But the best argument against politicizing charities, ironically enough, may come from conservatives themselves—in an unrelated Supreme Court challenge known as Janus v. American Federation of State, County and Municipal Employees.

In that challenge, which the High Court heard last month, an Illinois social worker named Mark Janus argues that the agency fees he pays his labor union are unconstitutional because they force him to subsidize positions with which he disagrees. As William L. Messenger, the lawyer representing Janus, told the Supreme Court, the First Amendment bars “compulsory fee for speech to influence governmental policies.”

This argument doesn’t wash in the Janus case, because unions are already barred from spending dues money on campaigns or political contributions. The Supreme Court acknowledged as much when it turned back a similar challenge in its landmark 1977 case, Abood v. Detroit Board of Education. Today’s right-leaning Court may side with Janus regardless, if the anti-union hostility on display during recent oral arguments is any indication. But the “compulsory speech” argument may come back to bite conservatives, particularly if Congress repeals or weakens the Johnson Amendment.

That’s because political spending by tax-exempt groups, which by one estimate totaled $181 million in the 2016 election, is indirectly underwritten by every taxpayer in the nation. This is true whether the big-spending group is backed by the Koch brothers or by George Soros. Politically active nonprofit groups enjoy substantial tax benefits, and are exempt from disclosing their donors—whether taxpayers agree with their political messages or not.

As the Rehnquist Court concluded in its 1983 case Regan v. Taxation With Representation, both tax exemption and tax deductibility amount to a form of public subsidy. A tax exemption “has much the same effect as cash grant” equal to what the charity would have paid in taxes, the Court found, and deductible contributions are likewise “similar to cash grants” amounting to a portion of the charitable donation.

The Court was even more explicit in its definitive 2000 ruling upholding the ban on political activity by churches, Branch Ministries, Inc. v. Rossotti: “The government has a compelling interest in maintaining the integrity of the tax system and in not subsidizing partisan political activity, and Section 501(c)(3) is the least restrictive means of accomplishing that purpose.” Churches have a choice between engaging in partisan political activity or enjoying the benefits of tax exemption, the Court ruled in Rossotti, but “that choice is unconnected to plaintiffs’ ability to freely exercise their religion.”

That finding directly contradicts President Trump’s claim that the Johnson Amendment, named for a ban on charitable politicking authored by then-Senator Lyndon Johnson in 1954, is squelching religious free speech. Trump pledged soon after taking office at last year’s National Prayer Breakfast to “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”

Trump almost succeeded last year, when his GOP allies on Capitol Hill attached a measure rolling back the Johnson Amendment to the Republican tax overhaul. But that proposal was scuttled for procedural reasons. Now the repeal effort is back, in the form of a policy rider tacked onto the omnibus spending bill that Congress is scrambling to pass in time for a March 23 deadline.

That rider essentially would make it impossible for the Internal Revenue Service to enforce the ban on partisan political activity by churches. Specifically, it would require the Internal Revenue Service to get approval from the IRS Commissioner before even opening an investigation into a church thought to have crossed the line politically, and also to notify Congress of any plans to investigate.

Last year, 5,600 organizations and 4,300 faith leaders wrote Congress to oppose the Johnson Amendment’s repeal and to defend the charitable sector’s special nonpartisan status. A full 90 percent of evangelical pastors also say church leaders shouldn’t be endorsing politicians from the pulpit. The repeal effort is driven not by rank-and-file pastors, but by deep-pocketed conservative groups with a political agenda. These include the far-right Alliance Defending Freedom, an anti-gay group that netted $77.6 million from conservative donors between 2008 and 2015—including the family of Education Secretary Betsy DeVos.

Also pushing hard to let churches engage politically are several powerful socially conservative groups at the vanguard of anti-gay and anti-abortion opposition. These include the National Right to Life Committee, Focus on the Family, the Susan B. Anthony List, and the National Organization for Marriage, which according to Public Citizen have collectively spent more than $22 million to influence elections since 2005.

The spending power of such groups would explode exponentially if any entity that calls itself a “church” could scoop up tax-deductible dollars and spend it on politics. It’s a scam that would leave American taxpayers holding the bag—and that conservatives, if they were honest or the least bit consistent, would oppose on principle.

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