In a gesture towards his religious right supporters, Donald Trump is expected to sign an executive order on Thursday that will give pastors and other church leaders greater leeway to campaign on behalf of political candidates. Or, at least, that’s what he seems to think he’s doing.
The reality is that Mr. Trump appears to be setting a dangerous trap for churches who may be lulled into violating the law by Trump’s order — only to discover that they are still quite vulnerable to legal consequences.
To explain, Trump previously promised to “destroy” the so-called “Johnson Amendment,” a provision of the tax code that will be familiar to pretty much anyone who has worked in the non-profit sector. Section 501(c)(3) of the tax code not only exempts certain organizations from paying taxes, it also allows the organization’s donors to deduct any donations they make to the organization on their own tax form. A large number of charities, including many churches, are recognized as 501(c)(3) organizations.
This special tax treatment is a significant subsidy from the federal government — the government is effectively saying that it will forgo receiving revenues it is otherwise entitled to in order to encourage people to give money to 501(c)(3) groups instead. For this reason, opting to become a 501(c)(3) tax exempt organization comes with a price. As the IRS explains, “all section 501(c)(3) 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.”
This restriction on 501(c)(3) groups ensures that the government does not wind up effectively subsidizing political campaigns.
All of this, of course, is entirely voluntary. An organization can accept this price and receive the very favorable tax treatment that comes with it, or it can retain its ability to actively promote political candidates by opting not to become a 501(c)(3). There’s even a third option. An organization can seek tax exempt status under other provisions of the tax code that do not prevent it from advocating for candidates and that still exempt the group from taxation, albeit on less favorable terms than section 501(c)(3).
Nevertheless, Trump wants churches to be able to have their cake and eat it too — that is, to be enjoy the most-favored tax status while also not having to pay the price that comes with it. According to a fact sheet the Trump administration distributed to reporters Wednesday evening, the new executive order “directs the IRS to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit.”
It should be noted that this is not an accurate description of what the “Johnson Amendment” does. The tax code does not prevent pastors from speaking about matters of political concern or even about people who are running for office, so long as they do not do so in a way that actively supports or opposes a particular candidacy. Just ask all the pastors who routinely opine on abortion from the pulpit.
This inaccuracy aside, however, there’s a real danger for pastors who take Trump’s executive order as a license to violate their 501(c)(3) status. Trump cannot repeal the restrictions that come with such status — only Congress can do that. And all that he purports to be doing here is instructing the IRS to not enforce the law against pastors who violate the tax code in a certain way.
That’s great for those pastors — so long as Donald Trump is still president — but nothing stops the IRS from bringing new enforcement actions the instant Trump leaves the White House and his executive order is rescinded.
In trying to help his political allies, in other words, Trump may lead them into a trap. His order will give them a false sense that they are free to violate the law, but the law hasn’t been changed at all. And enforcement of the law may only be delayed.