"Follow The Money"--Trump, Repealing The "Johnson Amendment," And Citizens United

Viewers of Donald Trump's coming out party for his apparent "forced choice" vice presidential running mate, Governor Mike Pence of Indiana, might rightly wonder why he spent almost as much time holding forth on the evils of something he called the "Johnson Amendment" than he did on the virtues of Mike Pence.
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Viewers of Donald Trump's coming out party for his apparent "forced choice" vice presidential running mate, Governor Mike Pence of Indiana, might rightly wonder why he spent almost as much time holding forth on the evils of something he called the "Johnson Amendment" than he did on the virtues of Mike Pence. What the heck is the Johnson Amendment, and why is it so central to Trump's campaign that it virtually pre-empted the purpose of his Saturday morning Pence pitch? As it happens, it turns out that the two subjects are very much related.

Trump, not heretofore known as a deeply religious or born-again Christian, has nonetheless enjoyed tremendous support from white evangelical Protestants, a core constituency of the Republican Party since Nixon's time and formerly an expected key element of Senator Ted Cruz's campaign strategy to win the GOP presidential nomination.

To Robert Jones, the author of the hot-off-the-press book entitled "The End of White Christian America," the reason for Trump's evangelical support reflects those evangelical voters' sense of loss of social control and prominence amid the demographic and cultural changes in America, particularly since Obama's election as the first African American president, their resulting deep nostalgia for a return to their former cultural sovereignty, and their sense that Trump's brand of bravado offers the best chance to achieve such a restoration.

This resentment and sense of disempowerment have been further stoked by recent defeats (especially in the courts) on such issues as Obamacare and gay marriage and even abortion, plus judicial, legislative and even executive vetoes of responses to such losses in the form of "religious liberty" legislation at state levels, couched in terms of protecting "First Amendment" rights to deny services to LGBT persons in the name of observing fundamental religious beliefs precluding cooperation with evil.

As Robert Jones pointed out, the conservative New York Times columnist Ross Douthat complained that, to evangelicals, the rejection of such statutory palliatives essentially means that the US culture will not even allow them a face-saving "surrender."

Trump has successfully positioned himself as the true and powerful defender of religious liberty (never mind how to square that "liberty" with how Jews may feel about Trump's proposal to require department-store employees to wish a merry Christmas to their customers instead of "happy holidays"). This Christian "restoration" notion looks like a "big Government" kind of idea that would ordinarily make GOP voters very uncomfortable. But it fits in with other Trump proposals for deep governmental intrusions into heretofore private activities such as telling businesses where they may or may not locate factories (ironically, he gets around the Constitution on that one by using the federal taxing power that saved Obamacare)!

More importantly, with the guidance of evangelical leaders, Trump has traced the roots of Christian disempowerment to a 1954 statute, backed by then Senator Lyndon B. Johnson, which puts the tax-exempt status of churches and other 501(c)(3) charities at risk if they endorse any candidate for office or otherwise engage in political activity.

On its face, this statute seems quite reasonable and consistent with the fact that contributions to political parties by you or me are clearly not tax deductible. Why should we be able to give to churches as a "pass through" for political campaigning and wind up with a tax deduction for using that route? Moreover, direct personal contributions to political parties are subject to disclosure while those to churches are not, unless you or I are claiming a tax deduction.

Trump, however, has come to the view that evangelical churches' First Amendment rights to free speech and religious freedom have been trampled and unconstitutionally denied via the Johnson Amendment, and he has vowed to lead an effort to repeal it in Congress. He chose to reiterate this campaign promise very purposely at the same venue where he formally introduced Pence, who was chosen in large part because of his consistent identification with evangelical religion and its causes--including, specifically, a failed effort in Indiana to legislate a religious liberty exemption allowing individuals and businesses to discriminate against LGBT customers.

The infamous Citizens United decision of the US Supreme Court, which ruled unconstitutional any limits on corporate or union expenditures to support or denounce candidates in political campaigns, also opened a loophole for political action committees set up as "social welfare" 501(c)(4) entities to receive unlimited, tax-exempt contributions that wind up supporting political campaigns--so long as such entities are "primarily engaged" in social welfare activities. This is a looser test regarding political activities than is applied under 501(c)(3) entities like charities and churches, where only "insubstantial" non-exempt (i.e., political) activities would be consistent with retaining tax-exempt status.

Indeed, the IRS's efforts to question whether various local chapters of the Tea Party--clearly a primarily "political-purpose" organization if there ever was one--should retain their 501(c)(4) tax-exempt status was what led to the so-called Lois Lerner "scandal" just before the 2014 midterm elections. It would be a fair point to argue that the IRS was only targeting conservative or evangelical entities (and not progressive or liberal groups) trying to get around the ban on tax-exempt donations to essentially political entities. But what was obscured by a lazy media and clever GOP political posturing was that the Tea Party had no business claiming tax-exempt status for its financial backing, any more than Republicans, Democrats, Greens or Libertarian parties do.

Trump now promises to exempt churches fully from any test--either 501(c)(3) or (4)--of whether their political activity is either insubstantial or not their primary purpose in order to maintain their tax-exempt status. This would give evangelical and other churches and charities the benefit of Citizens United to fund church endorsements and other directly political action in unlimited amounts. The effect would no doubt be viewed as Trump's biggest verifiable "charitable contribution" to date!

Perhaps it was merely a coincidence that, on the same day Trump introduced Pence as his VP pick and railed against the Johnson Amendment, Hillary Clinton promised to take on the Citizens United decision by constitutional amendment.

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