Vail Daily column: The limits of presidential power
February 7, 2017
At the National Prayer Breakfast earlier this month, the new president — who has no history of being a particularly religious person — declared that religious freedom is "under attack." By precisely who, the president kept to himself.
Rising on his tippie toes, and declaiming with his oratorical skills on full display, "I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution." I am unclear whether this was before or after using the usually somber occasion of the prayer breakfast to disparage his TV rival, former California Govenator Arnold Schwarzenegger, for his "Celebrity Apprentice" ratings.
Sometimes, you have to pinch yourself to make sure this is really the world we live occupy. Anyway…
The president's pledge was a nod to the new Commander in Chief's evangelical Christian supporter who helped him win the Big Seat on Pennsylvania Avenue. So far at least, like so many things Trumpian, the president has not detailed a plan to undermine the Johnson Amendment.
Am I the only one who found at least a skosh of irony in the fact that at roughly the same moment the president was avowing his intent to liberate the churches from religious “attack,” he was banning travel to the U.S. from seven Muslim nations under the thin veneer of national security? And, does anyone find it just a wee bit more peculiar that although the president glommed on to the sacred memory of 9/11 for traction under the wheels of his Muslim ban, not a single one of the 9/11 murderers derived from any of the banned nations?
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Can He do that?
All of this raises two questions: first, what is the Johnson Amendment? and second, can he do that? Can the president, by the wave of his tiny hands, undo Congressional legislation?
The first question first.
Named after that larger-than-life character, then-Sen. Lyndon Baines Johnson, the little-known IRS rule has squatted on its modest haunches since 1954. It applies broadly to tax-exempt organizations, including churches, but, despite the president's assertion of religious freedom being "under attack," it is rare indeed for a church to be penalized.
What the Johnson Amendment holds is pretty simple really. It is a provision in the tax code that prohibits all 501c3 nonprofit organizations from endorsing or opposing political candidates. As such, it applies to any manner of nonprofit organizations, ranging from charitable foundations to universities to churches. In short, churches are in no way singled out. The American Diabetes Association can no more endorse or oppose Bernie Sanders than can the Humane Society champion Carly Fiorina. In the same way, neither may a church, mosque, synagogue or any other tax-exempt religious organization throw its weight behind—or in opposition to—a political candidate or cause.
Specifically, 501c3 organizations are prohibited from conducting political campaign activities to intervene in elections to public office. The Johnson Amendment applies to all and any 501c3 organization, not just religious 501c3s.
Benefit of 501c3 Status
The benefit of 501c3 status is that, in addition to the organization itself being exempt from taxes, donors may also take a tax deduction for their contributions to the organization. Would it — you should ask yourself — be appropriate for a taxpayer to donate money to a philanthropic organization, take the tax deduction and then have that tax-free money used for electioneering? Should it be okay for the tax-exempt organization itself to stage political campaigns and still enjoy the advantage of not contributing to the common larder? If you think it should, then you should contact your senator. If you think not, then the same.
According to the Internal Revenue Service, contributions to political campaign funds, or public statements of position in favor of or in opposition to any candidate for public office, are disallowed. However, certain voter education activities as well as voter registration and get-out-the-vote drives, if conducted in a non-partisan manner, are not prohibited.
Partisan Political Footsie
The Amendment was to a bill introduced in the 83rd Congress which was enacted into law as the Internal Revenue Code of 1954. The Amendment was agreed to without any discussion or debate and included in Internal Revenue Code of 1954. It was considered uncontroversial at the time, and continued to be included in the Internal Revenue Code of 1986 enacted during the Ronald Reagan administration.
At least part of the basis of the Amendment is in recognition of the Constitutional imperative of separation of church and state. The other part revolves around the concept that if an organization wants to be absolved from paying taxes, it shouldn't be playing partisan political footsie.
So that's the "what," the next question is the how. How can the president "get rid of and totally destroy" the Amendment? Umm … let me think … he can't. This has to do with the separation of powers protected under the Constitution. While the president can cajole, cheerlead, champion, arm-twist, campaign, make noise, kick his heels up, pound the table, bray to the headings of the compass and throw a fit, what he cannot do with a wave of the presidential pen is to abolish the Amendment. That requires Congressional action. That said, the president could conceivably, direct the IRS to disregard the rule (which it largely does anyway) or use his presidential heft to buttonhole the Republican-controlled houses of the legislature to overturn the rule.
What seems certain, though, is if the Congress rolled back the rule as to religious institutions alone — and not other 501c3s — the courts would soon be clogged with protest.
Can the president "get rid of and totally destroy" the Johnson Amendment? No, he can't. Not on his own anyway. By the way, it is worth noting that in a recent poll, eight of ten Americans believe the rule should stay in place, that there should be clear lines of separation between church and state.
As a final thought, am I the only one who found at least a skosh of irony in the fact that at roughly the same moment the president was avowing his intent to liberate the churches from religious "attack," he was banning travel to the U.S. from seven Muslim nations under the thin veneer of national security? And, does anyone find it just a wee bit more peculiar that although the president glommed on to the sacred memory of 9/11 for traction under the wheels of his Muslim ban, not a single one of the 9/11 murderers derived from any of the banned nations? Or, in fact, that precisely none of the roughly 785,000 migrants admitted from those banned countries since the date of those cowardly attacks have accounted for a single domestic terror act?
Eyes wide open and hands on the wheel. This may be a bumpy ride.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, email@example.com or firstname.lastname@example.org.