President’s “Free Speech and Religious Liberty” Executive Order is a Lose-Lose for Everyone

by Linda M Czipo

The White House - Photo © Ad Meskens / Wikimedia Commons
Photo © Ad Meskens / Wikimedia Commons

On May 4, President Trump signed an Executive Order declaring the executive branch’s goal to “vigorously enforce Federal law’s robust protections for religious freedom.” Of particular interest to the broad-based charitable community is a provision that purports to make it easier for religious institutions to engage in partisan political speech and electioneering – activities that are prohibited for 501(c)(3) organizations under the “Johnson Amendment.” (Another provision concerns whether insurance companies must cover contraception for individuals if their employers opt out for religious reasons.)

The Center for Non-Profits, the National Council of Nonprofits, hundreds of other national non-profit and faith leaders, and nearly 4500 organizations across the country (including 174 in New Jersey) have come out strongly and repeatedly against weakening the Johnson Amendment, which the President vowed on the campaign trail and in his first weeks in office to “totally destroy.”

The President’s Executive Order is likely to face legal challenges from a variety of organizations, some of which reportedly are already in the process of preparing their legal filings. But in the meantime, what does it actually say, and what does it mean for 501(c)(3) organizations? Arguably, it says and means both nothing and everything simultaneously.

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Don’t Weaken the Existing Ban on Electioneering by 501(c)(3) Organizations

Proposed “Johnson Amendment” repeal would harm 501(c)(3)s 

U.S. Capitol
U.S. Capitol, Washington, DC

by Linda M. Czipo

Since 1954, tax law has contained a provision prohibiting 501(c)(3) organizations from directly or indirectly attempting to influence the election or defeat of any candidate for public office. This ban, also known as the Johnson Amendment for its sponsor, then-Senator Lyndon B. Johnson, applies not only to churches, but to all 501(c)(3) organizations.

During the February 2, 2017, National Prayer Breakfast, President Trump renewed his call for a repeal of the 62-year-old ban, and several different bills have been introduced in Congress to weaken or completely repeal it. The Center for Non-Profits strongly opposes repeal and supports preserving the current law.

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