May 4, 2017

President Trump signed an executive order today, titled Promoting Free Speech and Religious Liberty. The executive order is vague and uses the banner of free speech and religious liberty as justification for implementing partisan political agendas.

The order directs the IRS not to pursue the reassessment of tax-exemption status of 501(c)(3) organizations, such as houses of worship, if and when they endorse or oppose a political candidate or party. This order is in conflict with existing federal law such as the Johnson Amendment. The Johnson Amendment is a tax provision that prohibits 501(c)(3) organizations from endorsing or opposing political candidates.

Make no mistake: This is a misguided attempt to loosen campaign finance laws, politicize our houses of worship, and erode the separation between church and state.

First, 501(c)(3) organizations, such as houses of worship, are meant to promote the “public benefit.” Allowing them to engage in electioneering would result in organizations diverting already scarce philanthropic resources from programming to directly affect the results of an election. The money contributed to the organization would be tax deductible, and instead of serving the public, it would be used to influence an election.

The consequence of this new policy is that 501(c)(3) organizations may find themselves exposed to political pressure to support or oppose candidates in exchange for government funding or may experience pressure and retaliation for previous political positions.

Second, the order is not necessary to promote free speech despite its title. Houses of worship can already engage in public debates on political issues, host candidate forums, register and encourage people to vote, and even lobby on specific legislation under certain regulations. Moreover, 501(c)(4) organizations, whose donations are not tax-deductible, can endorse political candidates.

Third, allowing 501(c)(3) organizations and houses of worship to engage in partisan politics would open them up to political pressure to support or oppose specific candidates as a quid pro quo for government funding or other means of support. About one-third of nonprofit revenues come from government funding. For example, if 501(c)(3) organizations engage in electioneering, government agencies distributing grants may choose not to select a 501(c)(3) organization that supported a candidate from the opposing party.

Fourth, a March 2017 PRRI poll found that "more than seven in ten (71%) Americans oppose allowing churches and places of worship to endorse political candidates while retaining their tax-exempt status." In a letter to congressional leadership, 99 religious organizations expressed their strong opposition to the weakening of the Johnson Amendment.

Lastly, in Youngstown v. Sawyer, a Supreme Court case about the scope of presidential power, the Supreme Court held that the President had no power to act except in those cases expressly or implicitly authorized by the Constitution or an act of Congress. Here, Congress has previously acted in a way contrary to the President’s latest executive order. As such, this latest executive order will likely face legal challenges based on established Supreme Court precedent.

There are many steps that the President can take to protect religious freedom. For example, he can defend Muslims’ right to build mosques and wear religious clothing. But, today’s measure neither protects religious liberty nor free speech. Congress and the courts must work to check the powers of the president.