A Textbook Example of Fake News: The Executive Order Promoting Free Speech and Religious Liberty

Today, on the National Day of Prayer, the President of the United States invoked the Deity before issuing his latest Executive Order: “Freedom is not a gift of government, it is a gift of God.” Which God he had in mind was not totally clear, but presumably it is the generic Civic God trotted out at the end of every Presidential address: the God who blesses America. Then he signed an Executive Order which used a lot of words but really didn’t say much of anything at all.

Trump prayer day clap

(Evan Vucci, Associated Press)

The President had campaigned on a promise to revoke the Johnson Amendment, a rarely used portion of the tax code, which prohibits organizations which are tax exempt under section 501 (c) 3 from specifically endorsing or opposing political candidates. But his Executive Order did not do that. In fact, it says: “All executive departments and agencies shall, to the greatest extent practicable and to the extent permitted by law, [italics added] respect and protect the freedom of persons and organizations to engage in religious and political speech.”

In other words, the law says nonprofits and religious organizations cannot endorse or oppose political candidates and the order leaves the law in place. It does not allow religious organizations to do anything that they could not do yesterday, last year or 62 years ago, when then Senator Lyndon Johnson of Texas got it included in the Internal Revenue Code of 1954.

There was a very good reason for the original law: allowing religious organizations to endorse candidates would seriously undermine the transparency of campaign contributions since religious organizations are not just exempt from paying most taxes, but do not have to disclose their finances to the government at all. This could threaten the independence of religious groups who took money from donors under the cloak of religious freedom, but who then do their bidding in the political realm.

The Johnson Amendment never prohibited nonprofits or religious groups from weighing in on public policy. It only prohibited the endorsement of candidates. Religious and nonprofit groups regularly engage in advocacy and lobbying on a whole variety of public policy issues, from abortion to equal rights, from immigration reform to war, from environmental protections to gambling. They can still do that and they will.

What today’s Executive Order does is create the notion that religious groups can endorse candidates, without actually giving them the legal right to do so. That’s why the ACLU issued an amused statement following the signing calling it “a textbook case of ‘fake news.’.” It’s why the National Review called it “constitutionally dubious, dangerously misleading, and ultimately harmful to the very cause that it purports to protect.”

But it does give both the Left and the Right one more reason to send out fund-raising appeals and jam our headspace with dire warnings of the demise of the Republic. This Administration seems to do that at least once a day.

It makes me almost wish I was back in the fund-raising world again.


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