By Maya Gold
May 15, 2017

On May 4th, President Trump signed an executive order aimed at “promoting free speech and religious liberty” by instructing the Treasury Department to not take action against religious individuals or organizations that speak out on political issues. The order is an attempt by the president to follow through on the campaign pledge he made to religious conservatives promising to repeal the law, known as the Johnson Amendment, that bars churches and charitable groups from participating in electoral politics.

What the president signed appears to be a gentler version of a draft order that leaked in February, which would have instructed the IRS to not enforce the Johnson Amendment while carving out specific protections for particular religious views. As CREW Executive Director Noah Bookbinder said at the time, the language in the proposed order would have “eliminate[d] longstanding restrictions on political speech by nonprofit organizations, and favor[ed] religion, allowing the government to penalize some political viewpoints by nonprofit organizations while protecting the opposite viewpoints.”

Though President Trump trumpeted the order as giving churches “their voices back,” many religious conservatives were not very pleased with the slimmed down order, which Ryan T. Anderson, a senior research fellow at the Heritage Foundation, called  “woefully inadequate.” The Alliance Defending Freedom (ADF), a Christian-based legal organization that has been at the forefront of the movement to take down the Johnson Amendment, described the executive order as a “gesture” that left President Trump’s promise “to protect religious freedom for countless Americans…as yet unfulfilled.”

ADF had been championing the original, more extreme executive order since its February leak, urging supporters on social media to contact the White House about it. But executive action isn’t the only means by which religious conservatives are pursuing to gut the prohibitions against political activity by churches and charities, the result of which would almost certainly increase the amount of dark money in American politics.

A House Oversight Committee hearing about how the Johnson Amendment affects churches and other non-profit organizations, held on the day President Trump signed the executive order, exemplified religious conservatives’ aim to push beyond the president’s action. “While I greatly appreciate the president’s executive order today directing the Department[s] of Treasury and Justice on the Johnson Amendment, I believe it’s time that we rid of our nation of this unconstitutional law by way of legislative action,” Representative Jody Hice (R-GA) said at the hearing.

Rep. Hice is a co-sponsor of the Free Speech Fairness Act (FSFA), introduced in the current House session on February 1, 2017. The bill, which was also introduced in the previous Congress, would amend the Johnson Amendment to allow certain non-profit organizations to participate in political actions without losing their tax-exempt status.

Organizations that in the past called for full repeal of the Johnson Amendment have embraced the FSFA, arguing that it is a more targeted approach. ADF Legal Counsel Christiana Holcomb was at the press conference formally introducing the bill; she was joined by Tony Perkins, the president of the Family Research Council (FRC), a Christian public policy non-profit. Ms. Holcomb and FRC General Counsel for Government Affairs Mandi Ancalle were invited as witnesses to the May 4th House Oversight hearing, with Ms. Ancalle stepping in for Mr. Perkins, whose written testimony was submitted to the committee by the FRC.

Over the course of the hearing, both religious groups were vocal in their support of the FSFA, which Ms. Holcomb repeatedly referred to as a “relief valve for free speech.” In her prepared remarks, Ms. Ancalle advocated for the FSFA, saying “the political speech rights of churches and non-profit leaders should be restored by rolling back the Johnson Amendment through the Free Speech Fairness Act.”

The embrace of the FSFA by groups who previously advocated to end the Johnson Amendment suggests the argument that repealing the law could turn churches into vehicles for anonymous political spending has been effective. Rep. Jamie Raskin (D-MD), who participated in the hearing but doesn’t actually sit on either of the subcommittees that held it, raised concerns about “creating a divine dark money loophole in the law,” putting supporters of the bill on the defensive. Rep. Hice called the idea of a dark money loophole “nothing but fear mongering, and it’s false, it’s shameful. This is about free speech.” When Rep. Raskin asked the witnesses about funneling dark money through churches, Ms. Ancalle said,“that’s not the intent of the FSFA.” Ms. Holcomb assured Rep. Raskin that the FSFA “should allay your concerns about campaign finance law, because it doesn’t touch it.” “That’s what you’re saying, but that’s not what the language of the bill says at this point,” Rep. Raskin replied.  Watch the exchange:

The FSFA, while more narrow in some ways than a simple repeal of the Johnson Amendment, still raises significant money-in-politics concerns. The Campaign Legal Center (CLC) released a white paper the day before the hearing, pointing out how the FSFA could very easily increase the amount of dark money in American politics. The legislation allows any section 501(c)(3) charity, religious or non-religious, to endorse or oppose political candidates so long as those stances are “in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose” and “result[] in the organization incurring not more than de minimis incremental expenses.” But what those carve outs would entail in practice is not clearly defined. The CLC asks, “could houses of worship that regularly engage in door-to-door proselytizing argue that endorsing a candidate at each stop is permissible? After all, canvassing is already part of the church’s ‘regular and customary activities,’ and uttering a statement in support of a candidate doesn’t involve ‘more than de minimis incremental expenses.’”

In addition, some conservatives do not want any constraints on political activity by section 501(c)(3) groups from participating in politics, even if it leads to an increase in dark money. While both Ms. Holcomb and Ms. Ancalle supported an amendment to the FSFA that would prevent 501(c)(3) dark money during the House Oversight hearing, the third witness for the majority, Catherine Engelbrecht, did not. Ms. Engelbrecht was at the hearing in her capacity as a citizen, but she is also the founder of True the Vote, a non-profit that is notorious for its citizen poll monitoring during elections. When asked by Rep. Raskin if she would agree to a dark money amendment, Ms. Engelbrecht declined, saying the “separation of church and state just means that the government should stay out of churches. And I think that churches should be able to do what they want to do in the way that they want to do it.”

With many (although not all) across the political spectrum viewing President Trump’s executive order as a “nothingburger” that may not have much effective impact, it looks like the push by groups like ADF to undo the prohibitions against churches seeking to influence elections is set to continue in the legislative realm. As CREW’s Executive Director Noah Bookbinder has noted, repealing the prohibitions could open Pandora’s box for money in politics. That “divine dark money loophole” will not be closed by the bill religious advocacy groups are currently supporting.