On May 4th, President Trump signed an Executive Order (EO) regarding “religious liberty.” In the days prior to May 4th, there were rumors that this EO would include provisions that would sanction discrimination based on sexual orientation and gender identity, provisions that impacted reproductive health care, and provisions that would allow religious organizations to endorse political candidates, effectively “destroying” nonprofit nonpartisanship, as the President had vowed to do months early. Discrimination against LGBTQ communities was not included in this EO; some terms of reproductive health care were. With regard to nonprofit nonpartisanship, the EO appears to do little more than restate current law and encourage actions that are already allowed by 501(c)(3) charitable organizations under advocacy, education and lobbying rules and regulations. That is to say, nonprofits, including religious institutions, have always been able to, as the EO states, “speak…about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office...”
However, there is still some question as to how the EO affects nonprofits’ engagement with electioneering and political speech. The ACLU, having reviewed the EO for legal impact, said on May 4th that "today’s executive order signing was an elaborate photo-op with no discernible policy outcome… after careful review of the order’s text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process.” However, the Freedom From Religion Foundation (FFRF) has filed a lawsuit alleging the EO’s mandate to the government agencies to “respect and protect the freedom of persons and organizations to engage in religious and political speech” is unconstitutional in that it treats religious charitable organizations differently than non-religious organizations. FFRF has asked for an order declaring the EO unconstitutional and preventing the IRS from enforcing it.
While we continue to parse the exact impact of the EO, one thing is clear: we must continue to be vigilant against attacks on nonprofit nonpartisanship. (We also strongly suggest that religious organizations refrain from endorsing political candidates on the basis of the EO, as this still violates IRS regulations ) The EO, even if it did not change law or practice, did send a signal that this White House will continue to try to undermine the protections of the Johnson Amendment, which prohibits charitable organizations from engaging in electioneering. At the same time, Congress has proposed bills (H.R.781; S.264) that would gut or significantly weaken those protections. (Indeed, the EO was released on the same day that Congress held hearings about their bills.) This legislation would blur the current clear language that conditions tax-exempt status and the ability to receive tax-deductible donations in part on not engaging in partisan, election-related activities for or against candidates for public office.
NPCC opposes any attempt to weaken or dismantle the legal protection of the Johnson Amendment, which allows 501(c)(3) nonprofits to speak out on issues of the day and advocate on legislation but keeps us away from the divisiveness of supporting or opposing candidates for office. Nonprofits are safe spaces in our communities, designed to be above the political fray. Being nonpartisan allows us to focus on solving problems, helping our neighbors, and enriching our communities. Nonpartisan credibility – that we are not Republican or Democrat organizations, but community organizations - is critical to the ability of 501(c)(3) organizations to work with elected officials of all parties at the local, state, and federal levels to address community needs. Gutting the Johnson Amendment would, in effect, allow 501(c)(3) nonprofits to become political organizations, which would turn nonprofits into political operatives. This does not mean we should not advocate – we should and we must! We, as nonprofits, have the expertise and experience to know how policy proposals will affect our day-to-day work, and we must use that expertise to advocate for the solutions we think are most effective. Advocacy is our job - whether we see ourselves as advocacy organizations or not. We advocate every day on behalf of the people, communities, issues, spaces and resources that we know creates a better society for all of us. None of this changes with the new EO.
So what are our next steps? We must still make clear that our sector is opposed to weakening or repealing the Johnson Amendment. You can join us! Sign the Community Letter in Support of Nonpartisanship, if you haven’t done so already – and then tell others to join you. Write op-eds (like mine) or letters to the editor. Contact your Congressional representatives and tell them why the Johnson Amendment protections are so important to your ability to do your work. At NPCC, we’ll be continuing to monitor the legal landscape, including any legal challenges to this EO and movement on the Congressional bills. We’ll keep you informed as we learn new information or as new developments occur. We’ll do everything we can to protect our members, and the sector, from this threat.