On Monday, I wrote about a couple ways that the House tax bill might impact Mormons. Well, today Kevin Brady, the chair of the Ways and Means Committee, introduced an amendment to that bill. One of those ways was by carving out a small exception to the so-called Johnson Amendment for churches.[fn1] There was a lot of discussion swirling around over whether eliminating it only for churches would violate the Establishment Clause of the Constitution.
Well, apparently Brady didn’t want to take that risk. His amendment expands the exemption to all tax-exempt organizations.
A couple quick thoughts on the change. First, while it undoubtedly meets the constitutional barrier now, expanding the exemption adds really significant complexity. See, with the original incarnation of the bill, the exemption applied only to a “homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings.” Now it applies to any statement, provided that statement is in the organization’s ordinary course and doesn’t cause more than de minimis additional cost.
The thing is, though, most tax-exempt organizations don’t have general meetings where people congregate and where there is a presentation that could naturally veer into the political. So does this lack of meetings mean, in effect, that it still only applies to churches and church-like organizations? Or does it vastly expand the scope of permissible endorsements? (I suspect it’s the second.)
Second, note the weird timing. Under this amendment, the partial repeal of the Johnson Amendment doesn’t happen until 2019. And it comes back in full force in 2024. Why? Probably to keep its projected cost the same as it was when the prohibition was only lifted for churches.
Will this happen? Who knows—the Senate is supposed to release its tax bill sometime this afternoon, and I have no idea whether the Senate has any interest in repealing the Johnson Amendment. I also don’t know how the bill—including this provision—will fare once the full force of lobbying happens. Because not all churches are in favor of repealing the Johnson Amendment. Sure, there are a few vociferous supporters—often, though not exclusively, conservative Evangelical pastors—but there are a number of pastors who like the protection it offers from pressure to engage in politicking. So we’ll have to see what ultimately happens.
[fn1] “Johnson Amendment” is the stupid name that people use for the prohibition on tax-exempt entities supporting or opposing candidates for office.