1 00:00:00,240 --> 00:00:02,960 Speaker 1: At his first National Prayer Breakfast as President of the 2 00:00:03,080 --> 00:00:06,160 Speaker 1: United States, Donald Trump said he will quote get rid 3 00:00:06,200 --> 00:00:10,440 Speaker 1: of and totally destroy the Johnson Amendment, that provision of 4 00:00:10,480 --> 00:00:13,280 Speaker 1: the tax code. The Johnson Amendment prevents houses of worship, 5 00:00:13,400 --> 00:00:17,200 Speaker 1: like other not for profit organizations, from directly or indirectly 6 00:00:17,239 --> 00:00:20,800 Speaker 1: participating in political campaigns. The law has been in effect 7 00:00:20,840 --> 00:00:23,520 Speaker 1: since nineteen fifty four, when it was introduced by then 8 00:00:23,560 --> 00:00:27,160 Speaker 1: Senator Lyndon Johnson, and repealing it would require an Act 9 00:00:27,200 --> 00:00:29,880 Speaker 1: of Congress. Here to talk with us about the Johnson 10 00:00:29,920 --> 00:00:34,159 Speaker 1: Amendment and it's possible future are Alan Brownstein, a professor 11 00:00:34,280 --> 00:00:37,360 Speaker 1: at U C. Davis School of Law, and Miriam Galston, 12 00:00:37,440 --> 00:00:43,000 Speaker 1: a professor at George Washington University Law School. Alan, the 13 00:00:43,080 --> 00:00:45,760 Speaker 1: Johnson omen has been around now for a very long time. 14 00:00:46,200 --> 00:00:49,800 Speaker 1: UH churches seem to be able to participate in some 15 00:00:49,880 --> 00:00:52,720 Speaker 1: political activities, but it prohibits them for being in campaigns. 16 00:00:52,760 --> 00:00:57,520 Speaker 1: What exactly are the parameters of the Johnson Amendment? Big 17 00:00:57,640 --> 00:01:03,040 Speaker 1: Johnson Amendment prohibits five or one three C organizations and 18 00:01:03,120 --> 00:01:09,720 Speaker 1: those are nonprofit organizations that get very favorable taxics and status. UH. 19 00:01:09,760 --> 00:01:15,319 Speaker 1: It prohibits them from endorsing political candidates. Participating in a 20 00:01:15,319 --> 00:01:20,720 Speaker 1: political campaign for any candidate for political offices. If they 21 00:01:20,760 --> 00:01:24,760 Speaker 1: do that UH, in theory, they could lose their tax 22 00:01:24,800 --> 00:01:28,679 Speaker 1: ex and status. On the other hand, it should be 23 00:01:28,720 --> 00:01:34,240 Speaker 1: clear that this provision of the tax code is very 24 00:01:34,400 --> 00:01:38,720 Speaker 1: very loosely enforced. Its very unusual for the i r 25 00:01:38,840 --> 00:01:43,640 Speaker 1: S to go after a religious organization on the grounds 26 00:01:43,640 --> 00:01:48,560 Speaker 1: that they are unacceptably in permissibly participating in a political campaign. 27 00:01:48,840 --> 00:01:51,760 Speaker 1: Miriam to that point, Since two thousand eight, pastors have 28 00:01:51,920 --> 00:01:56,400 Speaker 1: openly defied the law on pulpit freedom Sunday, and many 29 00:01:56,520 --> 00:01:59,720 Speaker 1: participating pastors even send their sermons to the i r 30 00:01:59,840 --> 00:02:03,080 Speaker 1: S afterward. Only one has been audited by the i 31 00:02:03,320 --> 00:02:06,240 Speaker 1: r S and none punished, according to the Washington Post. 32 00:02:06,320 --> 00:02:10,760 Speaker 1: So what would be the impact of taking this law away? 33 00:02:13,120 --> 00:02:17,320 Speaker 1: The impact could be great. Be set up that you 34 00:02:17,480 --> 00:02:23,560 Speaker 1: had incorrectly stated what the UH Johnson Amendment does. It 35 00:02:23,639 --> 00:02:30,160 Speaker 1: prohibits participation in political campaigns by all charities, UH, churches, 36 00:02:30,320 --> 00:02:34,000 Speaker 1: other religious organizations, are any kind of charity. The Sierra 37 00:02:34,080 --> 00:02:39,000 Speaker 1: Club a ARPS charitable entity. So it would have an 38 00:02:39,040 --> 00:02:44,880 Speaker 1: impact not just on churches, which, as you pointed out, UM, 39 00:02:45,240 --> 00:02:48,760 Speaker 1: in connection with which the probition is not enforced lately. 40 00:02:49,120 --> 00:02:51,760 Speaker 1: Although the I R S used to audit churches and 41 00:02:51,800 --> 00:02:55,240 Speaker 1: religious organizations, they don't anymore, but they still do audit 42 00:02:55,560 --> 00:03:02,639 Speaker 1: other charities that engage in politics. Alan to to that 43 00:03:02,720 --> 00:03:06,120 Speaker 1: point is there. It's not totally clear what the president 44 00:03:06,200 --> 00:03:10,720 Speaker 1: is looking at, but can that they can churches be 45 00:03:10,800 --> 00:03:17,600 Speaker 1: exempted from these requirements without also exempting those other charitable organizations. 46 00:03:18,960 --> 00:03:23,360 Speaker 1: I think if you try to amend the tax code 47 00:03:24,080 --> 00:03:30,280 Speaker 1: to permit the churches religious organizations to engage in partisan 48 00:03:30,360 --> 00:03:36,760 Speaker 1: political activity, but continue to apply the provision against secular 49 00:03:36,920 --> 00:03:43,440 Speaker 1: charitable organizations, that would raise very serious constitutional concerns. It 50 00:03:43,520 --> 00:03:46,960 Speaker 1: could be a violation of either the free speech laws 51 00:03:47,560 --> 00:03:52,040 Speaker 1: of the First Amendment or the establishment course on the 52 00:03:52,080 --> 00:03:57,960 Speaker 1: First Amendment. Basically attacked exemption is a subsidy, and it's 53 00:03:57,960 --> 00:04:00,120 Speaker 1: been interpreted by the courts to be a form of 54 00:04:00,200 --> 00:04:06,760 Speaker 1: subsidies and more. The government generally has considerable discretion in 55 00:04:06,880 --> 00:04:12,120 Speaker 1: determining which private organizations or activities it would choose to subsidize. 56 00:04:12,880 --> 00:04:16,440 Speaker 1: Um there's a pretty strong argument that it can to 57 00:04:16,600 --> 00:04:21,080 Speaker 1: do that in a viewpoint discriminatory way. That is to say, 58 00:04:21,240 --> 00:04:25,320 Speaker 1: it couldn't decide only to subsidize Democrats and our Republicans. 59 00:04:25,520 --> 00:04:28,680 Speaker 1: It couldn't decide only to subsidize right wing but not 60 00:04:28,839 --> 00:04:33,240 Speaker 1: left league and speakers or organizations. Um. And there's a 61 00:04:33,279 --> 00:04:37,039 Speaker 1: long line of Supreme Court authority that has determined that 62 00:04:37,160 --> 00:04:40,919 Speaker 1: religion is a viewpoint of speech. So there'd be a 63 00:04:41,080 --> 00:04:47,080 Speaker 1: pretty persuasive argument than if you limited the ability of 64 00:04:47,200 --> 00:04:52,920 Speaker 1: secular nonprofits to engage in Protestant political activity but committed 65 00:04:53,000 --> 00:04:57,200 Speaker 1: religious speakers and expressive organizations to do so, that you'd 66 00:04:57,240 --> 00:04:59,640 Speaker 1: be violating the free speech course in the First Amendment. 67 00:05:00,240 --> 00:05:04,040 Speaker 1: And there's also an argument that doing so would violate 68 00:05:04,120 --> 00:05:07,799 Speaker 1: the establishment cause. And again we have some case President 69 00:05:08,040 --> 00:05:12,920 Speaker 1: President that says that if you give an exemption, a 70 00:05:13,040 --> 00:05:16,360 Speaker 1: tax exemption to religious speakers, in that case it was 71 00:05:16,400 --> 00:05:20,960 Speaker 1: a religious publisher, but you don't give comparable tax exemptions 72 00:05:21,320 --> 00:05:25,000 Speaker 1: to secular publishers, that that would violate the establishment cause. 73 00:05:25,520 --> 00:05:28,080 Speaker 1: I'm Michael Best with June Grosso and Greg Store. This 74 00:05:28,160 --> 00:05:30,920 Speaker 1: is Bloomberg law, and we are talking about the Johnson Amendment, 75 00:05:30,920 --> 00:05:35,200 Speaker 1: which prohibits UH not for profit entities, including religious organizations, 76 00:05:35,200 --> 00:05:39,000 Speaker 1: from participating in political campaigns. The President says that he 77 00:05:39,040 --> 00:05:41,680 Speaker 1: will destroy it in his words because in his view, 78 00:05:41,720 --> 00:05:45,000 Speaker 1: it prevents clergy from speaking freely on politics and without 79 00:05:45,120 --> 00:05:48,920 Speaker 1: fear of retribution. We're talking to Alan Brownstein of the U. C. 80 00:05:49,120 --> 00:05:52,280 Speaker 1: Davis School of Law and Miriam Galston of George Washington 81 00:05:52,760 --> 00:05:57,560 Speaker 1: University Law School. Alan, one of the things that is 82 00:05:57,600 --> 00:05:59,880 Speaker 1: interesting here is that people make donations to not for 83 00:06:00,000 --> 00:06:02,960 Speaker 1: profit entities and they get a tax deduction, whereas for 84 00:06:02,960 --> 00:06:06,160 Speaker 1: political donations they don't get that tax deduction. What would 85 00:06:06,160 --> 00:06:11,440 Speaker 1: be the implications of allowing in the context of campaign contributions, 86 00:06:11,440 --> 00:06:14,520 Speaker 1: what would be the implications of allowing UM not for 87 00:06:14,560 --> 00:06:20,719 Speaker 1: profits like churches to speak out in political campaigns. Well, 88 00:06:20,920 --> 00:06:25,040 Speaker 1: if you repeal the Johnson Amendment and allowed all of 89 00:06:25,200 --> 00:06:30,000 Speaker 1: five and one seas three organizations to commit essentially an 90 00:06:30,040 --> 00:06:34,919 Speaker 1: unlimited amount of their resources to political campaigns, you would 91 00:06:35,000 --> 00:06:39,279 Speaker 1: essentially make donations for the election of political candidates tax 92 00:06:39,320 --> 00:06:45,360 Speaker 1: deductible UM and memories is two concerns. One is, tax 93 00:06:45,400 --> 00:06:49,560 Speaker 1: deductions for charity are only valuable the donors who itemize 94 00:06:50,040 --> 00:06:53,880 Speaker 1: their tax returns, who basically earn enough income to take 95 00:06:53,920 --> 00:06:57,599 Speaker 1: advantage of these deductions. So what you would be doing 96 00:06:57,720 --> 00:07:01,839 Speaker 1: is creating a two tier system. Americans who are wealthy 97 00:07:02,000 --> 00:07:07,640 Speaker 1: enough to take charitable deductions, would be able to contribute 98 00:07:07,720 --> 00:07:13,120 Speaker 1: more money more after tax money UH to political candidates 99 00:07:13,320 --> 00:07:19,960 Speaker 1: and campaigns. Then would less wealthy Americans with lower incomes 100 00:07:20,080 --> 00:07:26,760 Speaker 1: who can't take advantage of charitable deductions. The other consequence 101 00:07:27,920 --> 00:07:31,480 Speaker 1: of this repeal would be that you would simply infuse 102 00:07:31,760 --> 00:07:37,400 Speaker 1: more money into election campaigns. If someone donated a thousand 103 00:07:37,400 --> 00:07:41,480 Speaker 1: dollars during the last election campaign, either for her Hillary 104 00:07:41,520 --> 00:07:45,520 Speaker 1: Clinton or for Donald Trump, UM, if they could and 105 00:07:45,600 --> 00:07:51,080 Speaker 1: that donation would not be tax deductible or undercurrent rules, UM, 106 00:07:51,200 --> 00:07:55,560 Speaker 1: if you repeal the Johnson Amendment, UH, they could donate 107 00:07:55,680 --> 00:07:59,640 Speaker 1: fourteen hundred dollars to a five or one rec organization 108 00:07:59,760 --> 00:08:02,160 Speaker 1: that is going to use all of that money for 109 00:08:02,680 --> 00:08:06,880 Speaker 1: an electoral campaigning UH. And you've increased the amount that 110 00:08:06,920 --> 00:08:12,920 Speaker 1: they could contribute to political campaigns by So you know, 111 00:08:13,080 --> 00:08:16,559 Speaker 1: if you think that there really isn't enough private money 112 00:08:16,880 --> 00:08:20,520 Speaker 1: in politics and in elections, and it would be good 113 00:08:20,680 --> 00:08:24,680 Speaker 1: to have a great deal more money being contributed to 114 00:08:24,880 --> 00:08:29,200 Speaker 1: election campaigns, um, and then you might support this repeal. 115 00:08:31,400 --> 00:08:33,480 Speaker 1: What you take on this, I mean, are we create 116 00:08:33,520 --> 00:08:36,360 Speaker 1: potentially creating It almost sounds like this whole new category 117 00:08:36,440 --> 00:08:41,319 Speaker 1: of super duper packs here well, I agree with Alan 118 00:08:41,640 --> 00:08:47,920 Speaker 1: that money would shift from sea fours and from to 119 00:08:49,520 --> 00:08:54,080 Speaker 1: threes if the Johnson Amendment were repealed. But I have 120 00:08:54,840 --> 00:08:59,240 Speaker 1: UH two caveats that are important. One is that in 121 00:08:59,320 --> 00:09:02,000 Speaker 1: order to be a title to a charitable exemption in 122 00:09:02,040 --> 00:09:05,960 Speaker 1: the first place, UM, an entity has to have a 123 00:09:06,040 --> 00:09:12,400 Speaker 1: charitable mission, and it cannot have even one substantial non 124 00:09:12,520 --> 00:09:19,079 Speaker 1: charitable purpose, even one UH substantial UH non charitable purpose, 125 00:09:19,120 --> 00:09:23,760 Speaker 1: and it's no longer entitled to the exemption. Furthermore, UM, 126 00:09:23,800 --> 00:09:27,520 Speaker 1: it's also the case that if I a charity provides 127 00:09:27,720 --> 00:09:32,760 Speaker 1: more than a small amount of private benefit, it would 128 00:09:33,640 --> 00:09:37,840 Speaker 1: also no longer be entitled to tax exemption. So the 129 00:09:37,880 --> 00:09:42,319 Speaker 1: idea that UM money could flow as freely through a 130 00:09:42,440 --> 00:09:46,880 Speaker 1: charity as it would flow through a UH pack, I 131 00:09:46,920 --> 00:09:51,280 Speaker 1: think is UM exaggerated. The second point I wanted to 132 00:09:51,360 --> 00:09:55,319 Speaker 1: make is that UM the main, although not the only 133 00:09:55,600 --> 00:10:00,400 Speaker 1: bill that's been introduced today was by Steve Scale, and 134 00:10:01,080 --> 00:10:05,440 Speaker 1: it's it's called legislation to repeal the Johnson Amendment. But 135 00:10:05,520 --> 00:10:09,800 Speaker 1: when you read it, you see it's extremely narrowly crafted. 136 00:10:10,760 --> 00:10:16,400 Speaker 1: Organizations charitable organizations are only permitted to engage in political 137 00:10:16,920 --> 00:10:20,560 Speaker 1: UH speech in the ordinary course of the organization's regular 138 00:10:20,600 --> 00:10:25,440 Speaker 1: and customary activities in carrying out its charitable purpose um. 139 00:10:25,559 --> 00:10:29,719 Speaker 1: And if any expenditure is only diminimus. So what that 140 00:10:29,760 --> 00:10:32,880 Speaker 1: means is if we um if this is the kind 141 00:10:32,920 --> 00:10:39,160 Speaker 1: of proposal for repeal that would get enacted. A pastor 142 00:10:39,640 --> 00:10:44,160 Speaker 1: could make comments from the pulpit um as long as 143 00:10:44,200 --> 00:10:48,120 Speaker 1: they were part of a servant, but not hold a 144 00:10:48,200 --> 00:10:52,480 Speaker 1: special event at the church to promote one or another candidate.