Johnson Amendment Challenge
President Trump Issues “Free Speech and Religious Liberty” Executive Order

May 5, 2017

On May 4, 2017, President Trump issued an Executive Order aimed at loosening the restrictions on partisan political activities by religious organizations. The Order raises fundamental questions and concerns for the non-profit community; however, 501(c)(3) organizations should be aware that the federal statute that prohibits electioneering and partisan political activities for 501(c)(3)s is unchanged and remains in effect.

The Order, titled, “Promoting Free Speech and Religious Liberty,” includes a provision directing the Department of Treasury not to take “adverse action” against any “individual, house of worship, or other religious organization” that “speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”  (Another section of the Executive Order concerns whether insurance companies must cover contraception for individuals if their employers opt out for religious reasons.)

This provision is intended to reduce enforcement of the current law (also called the “Johnson Amendment”), which prohibits 501(c)(3) organizations from directly or indirectly attempting to influence the election or defeat of any candidate for public office.  President Trump has vowed repeatedly to do away with the Johnson Amendment, and while the Executive Order clearly signals the Administration’s desire to encourage certain religious organizations to engage in political speech, changing or repealing the law itself would require an act of Congress.

All charities and foundations should keep in mind that the law prohibiting electioneering and partisan political activities by 501(c)(3) organizations remains in effect.  Any activity that was illegal before yesterday’s executive order is still illegal, so you must continue to steer clear of prohibited political activities under your organization’s auspices or with its resources.

The Center for Non-Profits will continue to work with our allies to urge Congress to preserve the current law and protect the nonpartisanship of charities and foundations. (See more in recent NJ Spotlight op ed with the Council of New Jersey Grantmakers, and the nationwide community letter signed by 4,500 nonprofits and allies across the country.) Let us know if you would like to be involved in these efforts.

Of course, the rights under current law for foundations to advocate and public charities to lobby – or for individuals to campaign or run for office in their personal capacities – also remain unchanged.

If you need help sorting through this information, contact the Center, or view our February 2017 recorded webinar covering the rules. 

For our analysis about the implications of the Executive Order, see our blog.

 

 

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