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The ’Splainer: What is the Free Speech Fairness Act?

The ’Splainer (as in “You’ve got some ’splaining to do”) is an occasional feature in which the RNS staff gives you everything you need to know about current events to hold your own at the water cooler.

(RNS) The day before President Trump used his remarks at the National Prayer Breakfast to promise a repeal of the Johnson Amendment, a bill was introduced in Congress to effectively do that. It has not yet been scheduled for debate or a vote.

The Free Speech Fairness Act is being touted as a “fix” to the Johnson Amendment, a 1954 law that prohibits nonprofits from engaging in politics. But how much of a fix would the act be? Would it protect the First Amendment right of free speech for clergy — or trample the concepts in the same First Amendment that form the basis for separation of church and state in America? Let us ’Splain …

What does the Free Speech Fairness Act propose?

The Internal Revenue Service’s tax code as it relates to nonprofit organizations, which includes most houses of worship, says a tax-exempt organization — a 501(c)(3) in IRS parlance — may not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

The Free Speech Fairness Act would change that. The language of the act proposes to “allow charitable organizations to make statements relating to political campaigns if such statements are made in the ordinary course of carrying out its tax exempt purpose.” The act would also require the organization making such statements not incur “more than de minimis incremental expenses” in doing so, which means with only minimal expenditure — no Super Bowl ads, no two-page New York Times ads, unless those are the usual places a tax-exempt organization promotes itself.

The act was introduced in the House by Reps. Steve Scalise, R-La., and Jody Hice, R-Ga., and in the Senate by Sen. James Lankford, R-Okla. Lankford is co-chair of the Congressional Prayer Caucus, Scalise is Catholic and Hice is a Southern Baptist pastor.

Hice said in a statement that he had “experienced intimidation from the IRS firsthand,” adding, “I know just how important it is to ensure that our churches and nonprofit organizations are allowed the same fundamental rights as every citizen of this great Nation.”

How would the Free Speech Fairness Act work?

It’s all in the phrase “if such statements are made in the ordinary course of carrying out its tax exempt purpose.” What is meant by “the ordinary course”? Is there a limit on the amount of “incremental expenses”? Such phrases are “not self-defining,” writes Daniel Hemel, an assistant professor of law at the University of Chicago. “… (M)uch will depend on the way that the IRS interprets  —  and enforces —  the ambiguous language that Hice and Scalise have put forward.”

But Hemel finds the act fairly neutral. “It’s not obvious that the Free Speech Fairness Act would favor Republicans. It would allow Planned Parenthood the same freedom to endorse candidates that it would give to, say, Samaritan’s Purse.”

Who supports the Free Speech Fairness Act and who opposes it?

Opponents of any change or repeal of the Johnson Amendment — who include Americans United for Separation of Church and State, the Secular Coalition for America and the Baptist Joint Committee for Religious Liberty — worry about obscuring the line separating church and state.

Many argue that religious leaders already engage in politics without fear of reprisal from the IRS. Some point to the Rev. Jerry Falwell Jr.’s support of candidate Donald Trump, which did not endanger the tax-exempt status of Liberty University, where Falwell is president. Others say taxpayers would effectively be supporting speech they do not necessarily agree with. “If an organization, such as a house of worship, accepts favorable tax treatment, they’re being underwritten by the taxes you and I pay,” Ellen April, a tax law professor at Loyola Law School in Los Angeles, writes in The Washington Post. “Which is fair enough, but then we, the taxpayers, shouldn’t have to pay for their partisan political speech that we may not agree with.”

Supporters of the act include the National Religious Broadcasters, an international organization of Christians in communication; the Family Research Council; and the Alliance Defending Freedom, a Christian organization that has long advocated a repeal of the Johnson Amendment. They view it as restoring free speech to nonprofit organizations, especially houses of worship. They also argue that critics concerned about the line between church and state misunderstand the principle.

“Thomas Jefferson’s ‘separation’ coinage doesn’t mean that there is a complete wall of separation between the two; it just means that the state should not have control over the church, nor shall the church maintain control over the state,” the act’s three sponsors wrote in The Washington Post.

Where do Americans stand on the issue?

The public has shown little enthusiasm for politics in the pulpit. A 2016 LifeWay poll found that only 19 percent of Americans agree with the statement “it is appropriate for pastors to publicly endorse political candidates during a church service,” and a 2013 Pew Research Center survey that found two-thirds of Americans think clergy should not endorse political candidates.

About the author

Kimberly Winston

Kimberly Winston is a freelance religion reporter based in the San Francisco Bay Area.

40 Comments

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  • Another Orwellian worded bill. You can tell it is pernicious anti-democratic garbage by the people supporting it.

    “Supporters of the act include the National Religious Broadcasters, an international organization of Christians in communication, the Family Research Council and The Alliance Defending Freedom,”

    The “Alliance Defending Freedom” and “Family Research Council” both support religious based discrimination under the color of law. When they support something, you can be certain that its intention is entirely bad for anyone with an ounce of moral and ethical fiber.

    Doing away with the Johnson Amendment would turn churches into tax exempt PACs. Essentially abusing the reason why they are exempt in the first place. Its not that clergy or churches are banned from free speech or political endorsements, its that they do not have the right or privilege to do so with tax exemption. Tax exemption given precisely because churches are supposed to be above this sort of petty considerations.

    If conservatives have such little regard for the dignity or reputation of churches, fine. Get rid of the tax exemption for all of them. Treat churches just like the PACs they want them to be. No need for such a distinction.

  • “It would allow Planned Parenthood the same freedom to endorse candidates that it would give to, say, Samaritan’s Purse.” Planned Parenthood already availed itself of that freedom when they endorsed Hillary Clinton a year ago. So did a whole lot of other influential liberal non-profits, with complete impunity.

    A law that no one cares to enforce might just as well be repealed. It pretty much comes out a Dem/Repub wash either way.

  • My thought is to always be wary of conservatives who are being vague by design. The two permissions with regards to “ordinary course” of action and “incremental expenses,” leave plenty of room to drive double-decker buses straight through. If it feels like a legislative Trojan Horse, it probably is.

  • Just a small asterisk on that last paragraph there.

    “The public has shown little enthusiasm for politics in the pulpit. A 2016 Lifeway poll that found only 19 percent of Americans agree with the statement ‘it is appropriate for pastors to publicly endorse political candidates during a church service,’ and a 2013 Pew Research Center survey that found two-thirds of Americans think clergy should not endorse political candidates.”

    Okay, but compare that statement with the following RNS photograph:

    http://religionnews.com/2017/02/07/united-methodist-devotions-supported-clinton-during-the-2016-campaign/

    Hmm. Something to think about, that’s all.

  • Of course, hypocrisy abounds on the left.

    As far as the survey goes, if the question were framed differently, you’d likely get a completely different response, i.e. “Should pastors be forbidden by law to endorse political candidates from the pulpit?” Appropriateness is one thing, and illegality quite another.

  • Yep, that support and enforcement of the Johnson Amendment should be a bipartisan effort.

    But then conservatives always considered churches as nothing more than glorified PACs anyways.

    Maybe it’s time to just do away with Church tax exemption altogether and just treat them like every other corporation.

  • If a _Lifeway_ poll found that only 19% thought it was appropriate, then it’s a sentiment shared by both the right and the left. I haven’t been quite able to find out what a devotion is in the United Methodist context, but it sounds like a combination of written Bible study/interpretation and prayer. It does not sound like something done from the pulpit. If that’s incorrect I hope someone will enlighten me (Google and Wikipedia did not).

  • People. Are right, pastors shouldn’t endorse candidates from the pulpit — any that make that their general practice are just asking for trouble. OTOH, the people advancing this bill are also right — pastors should have the right to do so. It’s been the tradition in the West for ages that churches are expected to speak truth to power, and that needs to continue. There can be times when a candidate is important or problematic enough that churches need to be able to speak out.

  • Planned Parenthood has two branches, one of which is the 501(c)(3) and the other is the political action arm which is authorized to campaign.

  • Planned Parenthood has two different arms, one of which is the medical arm and one of which is specifically for the purpose of lobbying. It is playing by the rules!

  • Pastors have the right to endorse candidates in their personal life, but not the pulpit. And churches are allowed to discuss positions. If they want to specifically endorse candidates, they need to pay taxes!

  • And don’t forget Planned Parenthood’s third branch: Baby Salad.

    “A lot of people want intact hearts these days.”

    — Dr. Deborah Nucatola, Planned Parenthood director of medical services, discussing customer demand while happily munching on yummy leafy veggies

  • Repealing this unfair and unjust act is necessary and desirable to restore the right of free speech to religious persons who happen to work with non-profits. They work for less money, so depriving them of the right to openly participate in politics is doubly unfair, essentially making them second class citizens.
    They must–however, accept the responsibilities that go along with their restored free speech rights. If their political positions prove to be unpopular with their contributors, they may lose substantial financial support. Plus there’s the danger of opposing a majority government’s strong stand on key issues. Most most nonprofits also receive much of their support from federal grants, and their political positions could put the renewal of their grants in jeopardy.

  • It’s a two-edged sword. It gives the same power to liberal Christian churches and Muslim mosques. I predict an increase in activism from those two groups. Regardless, I see no good coming from this at all.

  • I am more interested in the “appropriateness” angle of it. I don’t want my pastor endorsing candidates from the pulpit. That doesn’t mean I don’t want any political participation by him or the congregation.

  • Why would clergy and religious organizations get the benefit of categorical tax exemption for lobbying efforts when any other non-profit would not?

    You are not asking for rights here but a special privilege of clergy and churches that any other organization doing the same activity would not receive. If you want churches to be treated no differently from any other non-profit organization, then we should remove the automatic tax exemption for all churches and just have them follow the same rules as any other non-profit organization. Lobby groups have their own tax exemptions and rules to follow. If a church is going to be a lobby group, let them be a lobby group. Forego the benefit of claiming to be a religious organization whose purpose is ministerial and ceremonial tasks.

  • “pastors should have the right to do so.”

    They do. But when they start becoming lobbyists they are abusing the authority of the pulpit and should not get the privilege of a tax exemption for doing so. Speaking on general issues is a far cry from electioneering and lobbying activity. One is exercising free speech of an individual, the other is using church resources and manpower for organizational goals. Not any different from a corporation funding election efforts of a candidate and about as ethical.

  • Quoting a faked video. I guess a good lie is hard to drop. Honesty is not a trait one sees from religious conservatives.

  • And if you believe that its tax-exempt revenue and tax-deductible donations do not go to support the “lobbying arm,” I have a bridge to sell you.

  • Are you arguing that when a church seeks to advance a particular moral position they cease to be a church? Isn’t that fundamental to being a church?

  • Let’s be more honest here. I am saying when a church seeks to advance a given political candidate it ceases to be a church. To claim a given political candidate is a moral choice cheapens both morality and any pretension of a church’s spiritual authority.

    Vague language here only obscures the issue and promotes less than factually accurate assertions.

  • Why does a church seeking to advance its moral principles by giving its support to a particular political candidate mean it ceases to be a church? Aren’t churches supposed to seek to advance their moral principles?

  • Because it starts acting like a PAC and not a church. Moral principles have zero to do with selecting a political candidate. We can drop the pretense that morals and values have anything to political actions these days. It is not furthering moral or spiritual goals it’s advancing sectarian and political ones. Dishonest language typifies your position here.

    To use a church as a campaigning wing of a political party is to abuse their spiritual authority. It cheapens religion to partisan politics. If you are going to campaign from the pulpit, you should be treated like every other political campaign group. You don’t need tax exemption because you are not doing anything to show entitlement to it. You can call a coffee shop a church, but it doesn’t make it so. Calling a PAC a church is no different.

  • I find your statement that moral principles have nothing to do with selecting a political candidate to be deeply disturbing (that is the sort of thinking that gave us our current president). Likewise your assertion that sectarian and political goals don’t have spiritual or moral aspects. But moral principles SHOULD play a role in selecting candidates, and sectarian and political goals often DO have spiritual and moral aspects, and so long as that is true there is room for churches to play a role in advancing them. Mind, as I said, churches supporting particular candidates is a foolish decision on their part, but it is one that falls within their purview as churches.

  • Christian conservatives have abused the word “moral” so much that it has no meaning coming from them.

    The reality is it’s the same self interest and group power as every other political group. Take away the sanctimony and pretension of godly authority and all you have is another group trying to use their resources to influence an election in their favor.

    The real question to ask is in what ways do such activities constitute what a church is meant to do? What their primary function should be.

    Why should they get tax exemption for electioneering when others do not have such a privilege? What about a church should give them such an advantage? If they are meant to attend to spiritual needs, it is cheapened by engaging in petty political jockeying.

  • So you don’t believe that it is part of a church’s duty to seek the moral and spiritual betterment of society, and to call us out when we are failing our moral duty? You don’t believe that churches calling for an end to our culture of death, or those calling for the welcoming of all immigrants however they get here, aren’t taking these stands out of religious convictions?

  • I think you are giving a grandiose dishonest self serving description of what amounts to the work of an election committee. They are welcomed to do it, but there is no reason to expect it to be tax exempt actions.

    Electioneering is electioneering. It makes no difference why they are doing it, only that they are. It’s an activity outside of a church’s normal purpose and function. It has nothing to do with practice of religious rites and religious education that typify church functions when talking about income tax classification.

    If they are going to act and perform functions that are indistinguishable from a PAC, they should be treated as one. There is no necessity for tax exemption for them while doing so.

  • Let me ask again. Is it a part of a church’s duty to seek the moral and spiritual betterment of society, and to call us out when we are failing our moral duty?

  • Hell No. Especially if you describe electioneering activity in such a way. Because it is the most self serving, vague and dishonest way to refer to it. At no point is such activity part of the normal and accepted function of a church. Your description can be used for a coffee shop you decide to call a church.

    A church is not an election committee, it is not a political lobby group. It’s an abuse of a church’s status to act in such a way.

  • Got it, so all the churches condemning the President’s immigration policies are overstepping their bounds and so acting like PACs instead of churches, and so should have their tax-exempt status revoked.

  • We’re they electioneering? We’re they raising money for political campaigns? We’re they endorsing candidates from the pulpit?

    If so, they did not deserve tax exemption for it. Makes no difference republican or democrat leaning here. Abuse of church authority for political fundraising is a bad thing and the Johnson Amendment rightly punished such activity when enforced as it should.

    This is not a partisan thing, this is keeping integrity of churches and charities.

  • Ah, so you think it’s fine for churches to make general statements on moral issues, but not to state that THIS candidate will better advance those moral issues. I don’t really understand why the first is permissible and the second isn’t, but what about the reverse? “Candidate X’s position on abortion (or personal behavior) makes him (or her) unfit to hold office.”

  • Nope. Raising money and endorsing candidates is getting mired into muck of partisan politics. Claiming such activity moral or values based just strips the meaning out of such words. Making them cheap slogans. Claiming some religious justification doesn’t change the activity. You can call it whatever bullshit you want. It makes no difference. When churches act like PACs, they become PACs. They cease to act like churches.

    Churches have no business expecting to keep their tax exemption for doing this when any other organizations doing the same would not. Why treat churches special here?

  • What’s so morally suspect about raising money and endorsing candidates that it degrades churches? As for why churches should be treated different, because it is an inherent part of their mission to seek the moral and spiritual betterment of society. To strike against their ability to act politically is to hinder that mission. Mind, getting politically involved is a dangerous tactic for a church, becoming too closely affiliated with a particular candidate can be a real problem if he or she blows up, but it is an option that should remain available for extreme situations.

  • It is an abuse of the generally unquestioned authority and influence of a religious leader. The same way using a church as a for profit commercial venture is an abuse of religious authority. It us neither part of the ceremonial nor ministerial function of a church.

    So why call it a church at all? If they are acting as election committees call them election committees. Just slapping religious based excuses on something doesn’t make it a church.

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