executive orderAt the National Prayer Breakfast earlier this year, President Trump vowed: “I will get rid of and totally destroy the Johnson Amendment.” The Johnson Amendment, named after former President Lyndon Johnson, refers to language in the Internal Revenue Code Section 501(c)(3) that prohibits charities, including religious organizations, from participating in campaigns on behalf of or in opposition to a candidate for public office.

The president took official action on May 4 through an Executive Order, titled “Promoting Free Speech and Religious Liberty,” that exhorts federal agencies to respect and protect “religious and political speech.” However, notwithstanding the controversy surrounding the announcement, including one organization’s threat to file a lawsuit the same day, the Order will have little practical effect, and the threat of a lawsuit was withdrawn.

The Executive Order calls for IRS restraint in enforcing the Johnson Amendment against houses of worship, religious organizations, or other individuals or groups that speak out on “moral or political issues from a religious perspective.” As a creature of statute, however, the Johnson Amendment may not be altered or repealed by executive order; Congress passed it, and only Congress can repeal it. The call for prosecutorial discretion is almost as inconsequential, as historically the IRS has brought few cases against churches and other religious groups for engaging in partisan political activity.

Interestingly, the rule directs the Attorney General, rather than the IRS or the Treasury Department, to issue interpretive guidance concerning the Executive Order. Normally it is the province of an agency charged with enforcing a rule to issue its own guidance. The choice here no doubt stems from prevailing distrust of the IRS by the White House and Congress, reflected in last year’s failed effort in Congress to oust the IRS Commissioner and earlier this month in the omnibus spending bill, which bars the IRS from adopting new rules concerning the political activities of 501(c)(4) organizations.

Unless and until Congress acts to repeal the Johnson Amendment, religious groups would be wise not to place much weight on the president’s call for enforcement restraint. Any change in enforcement policy may be reversed by the next administration with another stroke of the pen.

For additional information and insights regarding nonprofit and political law, please connect with one of the authors.