The intersection of Church and State” by Chris Phan

If the president does what he says he will do, 501(c)(3) nonprofits and churches will be able to become active participants in electoral politics, directly supporting candidates and raising funds for political purposes. At last week’s National Prayer Breakfast, he renewed his campaign promise to “totally destroy” the federal regulations that prevent charities from using their resources for partisan political purposes.

“I will get rid of and totally destroy the Johnson Amendment,” he said, but he might as well have declared, “I will further compromise the public’s confidence in nonprofits.” Elimination of the Johnson Amendment would abrogate the unique and very powerful political influence of nonprofits as nonpartisan and disinterested entities.

“Free speech” is the rallying cry of those who support repealing a 60-year-old law enacted during the Eisenhower administration and making other needed changes to the tax code. On the campaign trail, Trump told his audience that the current situation “denies your pastors their right to free speech, and has had a huge negative impact on religion.

Opening the door to direct political action has been a key objective for religious leaders on the right. Family Research Council President Tony Perkins made the case in an op-ed published to the group’s website:

This ban is at odds with our own history. Since the birth of our nation, pastors and churches have been at the forefront of shaping public debate and our choice of public servants. For example, Martin Luther King Jr. was a clergyman, and the political involvement of African American churches was integral to progress in the civil rights movement he helped lead in the 1950s and 1960s.

None of that requires partisanship, of course, and, in fact, the Civil Rights Movement would doubtless have been compromised by its intrusion as a primary purpose.

Under current IRS rules, nonprofit organizations and their leaders are only “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.” Thus, free speech makes a good talking point, but the real objective for making these changes is to permit 501(c)(3) nonprofit organizations to raise funds for partisan political purposes and make political contributions both tax-exempt and more opaque.

Robert P. Jones, CEO of the Public Religion Research Institute said, in an interview with Salon, “Church members could give tax-deductible donations to a church, which would then be used by the church to campaign for a specific candidate. It could effectively turn churches into campaign offices and pastors into party operatives.” As the website explained, “a religious group could begin to release campaign ads, and church members could contribute to political candidates and write it off on their taxes.”

According to the Citizens United for Responsibility and Ethics, the change has the potential to further darken our political process.

Most of the dark money spending currently done by the non-charitable section 501(c) groups would almost certainly move to charities, as would at least some of the super PAC spending. The ability to deduct what would effectively be political contributions would be a massive incentive to contribute to charities that engage in politics, instead of to other section 501(c) entities. Even better, donors could still keep their contributions secret. Deductibility of contributions and secrecy similarly would motivate donors to switch from super PACs—and from candidates and political parties—to political charities.

Free speech with few limits is a very American perspective. Allowing nonprofit organizations to join more openly into the political conversation is not inherently controversial. But allowing them to become fundraising engines for candidates and parties would change the philanthropic landscape and ultimately make it harder for the nonprofit sector fulfill its core purposes, which includes campaigning for social change.

In an interview with the Forward, Daniel Kurtz, former head of the Charities Bureau at the Office of the New York State Attorney General and currently a partner at the law firm Pryor Cashman, described this challenge. “I think it will do nothing good. It’s been very good for the nonprofit world not to get embroiled in partisan politics. People are going to make decisions about supporting charities based on which side they’re on on which issue. I think it will be very destructive.”

Some nonprofit associations have been coming out in strong agreement. Tim Delaney, president of the National Council of Nonprofits, released the following statement last week:

“Nonpartisanship is vital to the work of charitable nonprofits. It enables organizations to address community challenges, and invites the problem-solving skills of all residents, without the distractions of party labels and the caustic partisanship that is bedeviling our country. Indeed, current law is the reason that charitable nonprofits are safe havens from politics, a place where people can come together to actually solve community problems rather than just posture and remain torn apart.

“Although all of these latest proposals are couched in terms relating to churches, in truth the underlying law is Section 501(c)(3) in the Tax Code, which relates to all charitable nonprofits and foundations. For more than six decades, the law now being attacked has protected charitable nonprofits and foundations from being pressured by politicians and paid political operatives to divert their time and resources away from advancing their missions in local communities. That law has a proven track record of working well to protect against politicization.

“Nonprofits are already free to exercise their First Amendment rights to advocate for their missions. Allowing political operatives to push for endorsements would put nonprofits in a position where they become known as Democratic charities or Republican charities and put missions at risk.

“Furthermore, those who donate to nonprofits want those contributions to go toward advancing the mission, not toward advancing the careers of politicians or lining the pockets of political consultants. Getting involved in supporting or opposing candidates will have a chilling effect on contributions on which many nonprofits rely.”

And the Minnesota Council of Nonprofits (MCN) called it a “bad idea.”

We believe the Johnson Amendment does not unfairly limit the speech of churches or nonprofits. Religious institutions and other nonprofit organizations who want to give up their public charity status are free to expend their funds for or against political candidates and partisan election activity and keep their tax exempt status as a (c)(4), or Section 527 organization.

MCN also urged the Minnesota congressional delegation to reject the proposed changes.

With this editorial, NPQ now adds its voice to those who resist any repeal of the Johnson Amendment, and we urge others to do the same. The nonprofit sector should assertively protect itself and the public from this baldly partisan effort.