Transcript
Well, good morning everyone in our Canopy Forum world. I am delighted to invite you uh to this very important webinar that we're sponsoring today uh on the question of the Johnson Amendment uh and whether religious organizations should make political endorsements. Uh I am Christy Green. I'm the executive editor of Canopy Forum. Uh, and I want to give you a little bit of background about how we got to this issue and then introduce our wonderful set of panelists today. Um, as some of you may have noticed, uh, midsummer around July 7th, uh, there started to be news articles. a news article in the New York Times reported that the IRS in a filing in a legal case uh had taken measures that seemed to suggest that uh it was going to give uh religious organizations, houses of worship uh more latitude in endorsing political candidates. Um that was followed by another New York Times article uh which came up in August uh which described this as sort of the culmination of an effort particularly on the Christian right uh to uh have uh freedom of speech was the justification for religious organizations uh to make political endorsements. Uh that New York Times article mentioned one of our panelists Ben uh quoted Benjamin Left uh and also uh quoted uh folks from the Americans United for the Separation of Church and State. Uh it was a very deep art deep article, a long article, hardily recommend it and it does contain links to the key case in this area that is going through the courts and which some of our panelists are involved in. uh a case filed by the national uh religious broadcasters association in Texas uh which uh is in the fifth circuit which is known to make very interesting uh rulings. So we're all waiting to see um how that will go. Um there were other sort of issues that that we other articles that we became aware of. There was an interesting article by that again quotes another one of our guests today uh on red churches and blue churches uh out of the John Danforth center at Washington University. Uh so we were very interested in bringing this issue uh to our canopy forum public as sort of a consumate uh law and religion issue. Uh and we do have a wonderful set of panelists today including Benjamin Left who is a professor at the Washington College School of Law and American University. He is a nonprofit tax law specialist and has some very important um insights into the nonprofit law sector uh and those dimensions of this case. We have professor Michael Boyd of Emery Law School who is the director of our SJD program uh the Burman projects director at the center for the study of law and religion at Emery University and his area of interests are law and religion, Jewish law and ethics uh and uh comparative religious law. So he brings the perspective both of a professor of law and uh an active rabbi. Uh Rebecca Mark is vice president and legal director at Americans United for Separation of Church and State. Uh leading teams of attorneys to protect the constitutional principle of separation of church and state. Uh and she is involved in many courses in this area including the one that uh is currently making its way through the court on the Johnson amendment. Uh uh fourth we have Kevin Hancock who is the director of campaign fi finance litigation at the campaign legal center which does uh a lot of excellent voting rights and election law work. Uh he worked for nearly a decade as an attorney at the federal election commission and brings uh important c campaign finance uh and the possibility of dark money uh as a perspective to this uh discussion. Finally, we're delighted that uh delighted to have found Mark Valeri uh who is the Reverend Priscilla Wood Nees Distinguished Professor of Religion and Politics and currently serves as the director of the John C. Danforth Center on Religion and Politics at Washington University. uh and he will bring us a sort of historical perspective particularly from the Protestant churches and their understanding uh of the relationship between church and state uh and whether religious leaders should be making these sorts of endorsements. I should also mention that one of the features of this debate is that it's not an entirely new debate. Uh it came up during the first Trump administration in 2017 was kind of a flash in the pan. It was discussed it went nowhere. But in the second Trump administration, it is back in this sort of uh robust form, but through the particular vehicle of an IRS filing an illegal case, which is interesting. Um, and I will just say that personally as an Episcopalian, I'm old enough to remember, as they say, back in 2004, uh, when an Episcopal church in San Diego uh, came under fire for having anti-war sermons. Uh this was just as we were getting into the height of the uh Afghanistan and Iraq wars and I was actually teaching up at Harvard Divinity School attending an Episcopal church and one of my students was the seminarian who wanted to start a religion and politics discussion group in the church uh which actually had the assistant recctor sit in to make sure that we didn't venture inappropriately into partisan uh conversation. Uh so it was definitely a very live issue in my church. uh which and I can say the church I'm attending now like many uh has political divisions within it. Uh there was recently a talk given at Emory by Tim Alberta uh who has published uh number of books in this area recently and he refers to having grown up as a preachers's kid uh and his latest book uh starts off with the story of a a young minister in his father's old congregation uh and having to deal with political division in the church and the the real difficult position that this puts can create not only in the engagement of churches in politics but in relations within the churches. So a rich set of issues to discuss today. We're delighted to welcome you to our audience uh and remind you that we will have after each pres presenter speaks for about 8 to 10 minutes. We'll have a period of about 15 minutes of interchange between our pres among our presenters uh and then we will have at least 15 minutes for your question. So if you do have a question that is emerging for you uh please type it in the question and answer box uh at the bottom of your Zoom screen. uh and we will endeavor to get to as many questions as we can. So without further ado, uh let's start our conversation with Professor Benjamin Le. Benjamin, >> thank you so much uh for that introduction and thank you so much for including me uh today. So um like you said, I'm a I'm a law professor. I teach tax law at American University's law school and I've been writing about the Johnson Amendment for 17 years, which is one year longer than I've been a professor. So I've been thinking about it a lot. Um, and I think that I'm the tax lawyer on this panel. So, I take very seriously that as the tax lawyer, I think that I kind of am going to take up three tasks. Um, the first is to just give an extremely quick primer on the deductibility of charitable contributions and the nondeductibility of expenditures for campaign issues or for political contributions. Then I'm going to talk a little bit about the Supreme Court's juristprudence in this area. Um, and then I'm going to very briefly talk about the what the IRS did very recently and how dramatic a a change it is from, uh, the position that they've been taking, uh, for decades. So, um, first, for anyone who doesn't know, um, oh, and let me just apologize. I'm going to kind of read from a script because otherwise I'll never stick to under eight minutes. though. Um, for anyone who doesn't know, uh, contributors to 501c3 organizations can deduct their contributions, the value of their contributions as long as they itemize their uh, deductions on their tax return. And just for reference, only 10% of taxpayers itemize. So, the deduction for charitable contributions is really only valuable for the top 10% earners. And it dramatically magnifies the richer you are. So, it really is a it's what we call an upside down subsidy. It's a it's a very dramatic subsidy for very wealthy people. It's totally irrelevant for 90% of us. Um uh campaign expenditures, as I said, are not deductible. Um and the Supreme Court has described the deductibility of charitable contributions as a subsidy from the government for charitable activities. Um, and the government's choice to not subsidize campaign contributions is often called nonsubvention. That is not subsidizing um, and I'm just going to use that shorthand, the government's policy of not subsidizing campaign expenditures, but subsidizing a charitable contributions. So why is campaign speech by charities or the prohibition of campaign speech by charities, why is that a legal problem uh from a constitutional perspective? Um so quick introduction to this area of law from a constitutional perspective. The first amendment clearly protects the right of any person to communicate ideas including political ideas um and qualifications of candidates for office. And some believe that this communication about the qualifications of candidates for office is really in some ways the most important protection contained in the first amendment. It's what allows us to kind of speak truth to power. Um this protection includes organizations, not just individuals. And so charities, including churches, have a core first amendment right to communicate ideas about the qualifications of candidates for office. But the Johnson Amendment purports to say that they can't. So how does how do you square that circle? Um and the way that you square that circle is the first the Supreme Court has not said that the way that you square that circle is that uh the benefit of charitable contribution deduction is kind of an option and any organization can take it if they want or leave it. But if they take it, they have to forego their first amendment rights to engage in speech including campaign speech. They haven't said that it's just a quidd proquo and therefore it's totally permissible. The government can offer benefits to organizations and only give those benefits contingent on those organizations giving up their first amendment rights. Instead, they've said something slightly different from that. And the different thing they've said about that is sometimes called the unconstitutional conditions doctrine. But in this context, uh the leading case is a really old case, a 1983 case, uh called Rean versus Taxation with representation of Washington in which the Supreme Court said the government can limit the use of the subsidy that's contained in the charitable contribution deduction and tax exemption uh and deny that tax benefit for the activity of campaign speech. In other words, they can choose non-subvention. They can choose to not permit their subsidy to be used for campaign speech. Um uh but they can't use it as a carrot to get an organization to give up its right to engage in speech. And what that means is the the legal scheme the government provides some mechanism for an organization to engage in its core free speech rights including political speech. some mechanism that allows it to avoid using subvention. And in that case, the mechanism that is discussed is what uh is often called the alternate means doctrine is the 501 the the organization would use a 501c3 for its charitable activities and it would create an affiliate organization like a 501c4 or some other organization that does not get taxdeductible contributions and it would use that organization to engage in its campaign speech. The C3 could then devote itself to its charitable activities. And this is a very common structure. You may be familiar with massive organizations like the NRA, which engage in a an unbelievable amount of campaign and legis and lobbying activities in their C4 and also engage in charitable activities in their C3. Those charitable activities are educating the public about safe gun use or something like that. Or if you prefer an example from the left, Planned Parenthood, similar structure, a lot lot lot of lobbying and campaign activities in a 51c4 organization and a lot lot lot of charitable activities providing health care directly to um to people who need it in their C3 structure. But it's always been challenging to think about how this affiliate organization structure, this mechanism applies to churches. And partially that's because the the kind of communications that churches engage in from the pulpit, what is usually called pulpit speech, is so at the heart of what churches do or what churches perceive themselves to be doing. So if you say to churches like fine, you can't engage in any political speech from the pulpit, but go ahead and create a 501c4 organization and then the 501c4 organization can engage in all as much political speech as they want. the churches believe or it's not the churches I should be clear it's a very small minority of churches who are upset about this but the the churches who are upset about this believe that this the the first amendment should protect not just their speech generally but specifically their pulpit speech and that question that narrow question is the affiliate organization solution sufficient to vindicate church's rights to speech or do churches need some right to engage in pulpit speech to endorse candidates, for example. That is a potentially very hotly contested legal question, and you could spend a lot of time trying to predict what would happen if that question got to the Supreme Court, for example, or or a court who has the uh jurisdiction to decide it. Um, but the IRS solved this problem for many years by saying very clearly that pulpit speech violates the Johnson Amendment. Churches do not have a right to use their pulpits to endorse candidates, but they conveniently did not enforce this against churches who were openly violating the law. And lots of people speculate that the IRS was consciously not enforcing it because they didn't want to be in court arguing this narrow legal question that I just described. They were too afraid that they were going to lose it. So they avoided enforcing while stating very clearly that pulpit speech was uh was illegal effectively or violated the Johnson amendment. Um and um that kind of carried along merrily until last summer when with a change of administration the IRS uh uh agreed to a consent judgment which my co-panelists I think will talk much much more about. Consent judgment is has not been adopted by the court. were waiting for the court to have a hearing and then decide what to do. But the IRS through the Department of Justice agreed to a limitation that would really clearly permit uh Church's speech from the pulpit on core campaign related speech. including endorsements of candidates. And um the limitation on that on that on this the limitation on this exception to the rule um is I'm sorry I'm way over um is that those communications must be internal to a house of worship between a house of worship and its congregation in connection with religious services. Um, and so I'll just very briefly just say, so what's wrong with that um, exception? If the if the IRS wants to agree to create an exception to permit this kind of speech under these circumstances, what's wrong with it? So, very briefly, there's two elements of what's wrong with it. One is that it's limited only to churches. And immediately, there will be a legal challenge to the degree to which the IRS lets it get to court. there will be a legal challenge of non-churches arguing that their speech rights are also um equally uh um uh uh violated by the Johnson amendment and if churches are allowed to communicate with their members then so should everybody else. That will happen immediately and they'll have pretty good speech arguments and pretty good establishment clause arguments. And then more in my line of work tax law also what will happen is immediately organizations will seek to expand the scope of that. So they'll try to push the boundaries of what counts as an internal communication. And we already have churches spending mill literally millions of dollars communicating their religious messages to a very very wide public. It's not clear who what is internal. And surely following this ruling, the very first thing that will happen is there will be churches willing to accept millions of dollars of contributions from wealthy donors who want to take a a taxdeductible contribution in order to engage in political speech. and they will use that money to promote their religious message which also will include obviously the endorsement or the political component. So with that I'll stop. Thanks. >> Thank you very much Professor Laugh. Uh we couldn't have started with anyone but a tax lawyer. Beth bless be the tax lawyers. Uh now we will move on to Professor Michael for uh a Jewish perspective uh and and law and religion perspective on this problem. >> I'm here not really as a law professor. I am a law professor. I work in the law and religion field. Um, but here I'm going to talk to you as a former synagogue rabbi and a person who goes from synagogue to synagogue frequently speaking. And yet I've taken a very clear public stand both uh in a in a large Jewish newspaper and in countless pulpit presentations against synagogues engaging in the endorsement business um and discouraging rabbis from stepping up to the pulpit with a political endorsement of a candidate. Um what I think happens when religious institutions um categorically endorse people um is a very complicated conversation because candidates as opposed to causes are complicated individuals with many stands on many different issues. And when you endorse a candidate, I say to my my I say to congregants throughout the United States, you end up endorsing more than a particular stand on a particular issue. When you stand up and say on this issue, this is how our community feels. Um that's not an endorsement of a candidate, that's an endorsement of a cause. And if we lived in a referendum state like California where you're occasionally allowed to go to the ballot and vote on an idea, um we would have very clear views on an idea. But when you endorse candidates, candidates are inevitably complicated people. You sometimes have candidates who very strongly support your view on one issue and oppose your view on other issues. Or you have candidates who completely support your views on a number of issues but are living lives that are contrary to the Jewish tradition. And when you endorse them, you say to your community, this is a suitable role model for us. And this creates so many complexities um that it's almost never worth doing. Let's take a hypothetical mayorial candidate who's violently anti-Israel but in favor of helping the poor people live well in the in the city that they're living in. Um so the Jewish tradition very much looks to the support of the state of Israel as a test, but it doesn't deny that taking care of the poor among us is an also important task. And when you ask me to choose, I personally am happy to choose. Reach out to me by email and I'll tell you who you should have voted for on that hypothetical candidate. But that public endorsement is much more complicated because it involves prioritization of values because it's exceptionally rare that you have a candidate who supports you in every value and in every way. And any candidate who says to me, "Whatever Rabbi Brud is in favor of, I will vote for. And whatever he is against, I'm against." you should vote against that person too because we don't want candidates so closely connected to a specific religious faith as John F. Kennedy reminded us in his famous speech about Catholicism. So in no way, shape or form would I endorse a candidate who says to me, "Every single bill that comes in front of me before I decide how to vote, I will ask you, Rabbi Brud, what