On February 2nd America's God-Emperor Donald Trump made the obligatory appearance at the National Prayer Breakfast that is required of presidents. While most of his comments seemed to focus on a desperate attempt at humor, he did make one serious policy proposal: he told the crowd that he wants to repeal the "Johnson Amendment."
The Johnson Amendment, named after former president Lyndon Johnson, is the law that prohibits tax-exempt non-profits from engaging in political activity. Passed in 1954, when Johnson was a U.S. senator from Texas, the law states that churches and other tax-exempt organizations are
absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.
Many right-wing churches have been aching to repeal the law for years, and now it seems they have found a champion in Trump. But, as the Associated Press reports, the issue cuts in many different directions.
Many predominantly African-American churches have long engaged in political activity that doesn't violate the Johnson Amendment, through things like "Souls To the Polls" and similar events designed to get black church-goers to vote. Since that type of activity doesn't directly support or endorse any particular candidate it is 100 percent legal.
Eliminating the Johnson Amendment would allow liberal churches to advocate for Democratic candidates, just like conservative ministers could openly support Republicans. But liberal black pastors have never pushed for repeal of the law like their conservative white counterparts have.
Many white evangelicals see the law as an unconstitutional restriction on their free speech. But there are also some on both sides who worry that eliminating the amendment will make churches into places where political campaigns drop "dark money" in exchange for endorsements. Currently political contributions are not tax-deductible, but donations to churches are. Releasing political donors from the restrictions of the Johnson Amendment could essentially turn churches into political money laundering operations during election season.
Reverend Raphael Warnock, the chief pastor at Atlanta's Ebenezer Baptist Church, the congregation once led by Martin Luther King, Jr., is concerned about eliminating the law. "This opens up a can of worms that would undermine the church's moral authority," he said.
It isn't completely clear from Trump's comments whether he understands that the Johnson Amendment is a law, not a policy or regulation. Which means the president can't get rid of it with an executive order. But Trump already has help in Congress. The day before he offered his remarks at the prayer breakfast, Oklahoma senator James Lankford and Georgia representative Jody Hice introduced legislation that would "fix" but not repeal the law.
The Hice-Lankford bill, called the "Free Speech Fairness Act," would allow churches to comment on candidates "in the ordinary course of the organization’s regular and customary activities." But that would effectively be the same as a repeal, because pastors would be free to criticize or endorse candidates based on their positions on virtually anything.
Supporters claim the bill also maintains the prohibition on 501(c)(3) non-profits, which includes churches, supporting or endorsing candidates. Sort of. A pastor would be free to endorse a candidate during his "regular and customary activities," e.g. a sermon, as long as his church doesn't incur more than "minimal" expenses in making the endorsement.
The idea behind the Johnson Amendment is simple: organizations that are not required to support the government via taxes have no right to express their opinions as an organization on who they would like to see in charge. Individuals representing those organizations have always had the same free speech rights as everyone else as long as they only speak for themselves and not for their church or charity.
Eliminating the Johnson Amendment would be a big crack in the wall separating church and state in America. While in theory the change would affect both liberal and conservative churches equally, in practice it would open a floodgate of money from well-heeled conservative donors to right-wing congregations. The focus should be on getting money out of politics, and this would be a major step in the wrong direction.