Unless there has been some recent change in IRS policy that I don’t know about and that Marty does not suggest, the Amendment is not limited to “express” endorsements. The IRS jawboning, which is its only enforcement effort, describes many things that it views as implicit endorsements, such as voter guides that focus on issues of concern to the church, or comparisons of candidate positions to church positions. These are summarized in the CRS report he links to.
There is an ambiguity at the end of the paragraph that begins “notably.” Contributions to the 501(c)(4) would not be tax deductible. Creating the 501(c)(4) would not change the status of the original 501(c)(3). The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to political expenditures. The hard issue of cost-free endorsements in sermons was not presented. Is there any reason to think that the IRS is pursuing cost-free endorsements by secular non-profits? If not, there is no discrimination to trigger Marty’s Establishment Clause argument about current enforcement policy. I have never seen any account of such a case against a secular non-profit. The real problem with what Marty anticipates from the EO is this: Since the IRS already has an implicit policy of non-enforcement with respect to cost-free endorsements, the only possible effect of the EO is to direct non-enforcement with respect to political expenditures of money. And that would open up an enormous loophole in campaign finance regulation and in the rule that political expenditures are not tax deductible. A House Subcommittee is holding hearings this morning on the bills to repeal or amend the Johnson Amendment. Shameless plug: I wrote about the Johnson Amendment here: https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, May 4, 2017 8:56 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Johnson Amendment E.O. FYI: https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937
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