WaPo gives Trump Four “Pinnochios” for his repeated claim that His Administration Repealed Prohibition Against Campaign Intervention

Shakespeare’s MacBeth, having been asked in tax class to summarize the impact of Section 2, Executive Order 13798, described it ruefully, as “a tale told by an idiot, full of sound and fury, signifying nothing:” Here is the provision about which he might have spoken::

Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken 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 by the Department of the Treasury.  As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.

If, by his comment, Mr. MacBeth might have intended that the provision is a slick piece of legalese doing nothing to change the status quo ante, I agree.  Of course, if you consider the larger context, the provision is not so much a work of legal idiocy as it is a work of political genius.  It has, as the Washington Post pointed out a week or so ago, allowed the President to proclaim in about ten different campaign speeches that he has repealed the “Johnson Amendment,” including this assertion at the National Day of Prayer event earlier this month: “They took away your voice politically and these are the people I want to listen to politically but you weren’t allowed to speak. They would lose their tax-exempt status.That’s not happening anymore so we got rid of the Johnson Amendment. That’s a big deal.”  To the willfully mis- or uninformed — most of the elctorate,  I mean — the provision proves the President’s religious and political bona fides.  The real genius is that somebody in Treasury gave the President what he wanted without doing greater harm to the Constitutional order of things — Congress makes the laws and only Congress can repeal a law. The Wapo piece gives a nicely concise discussion of the prohibition against campaign intervention.  One that makes me wonder who, really, is the idiot in all of this.  After all, and at least when applied to houses of worship, the prohibition against campaign intervention is so obviously unconstitutional that the Service cringes from its enforcement like Superman from kryptonite.  

We all know at least one intolerably obnoxious judge, partner, associate, or faculty colleague who we can’t stand agreeing with but who we secretly know is right most of the time.  Its just the damnable way they go about being right that makes us want to disagree when we know they are probably right as a matter of substance.  And the continued insistence that we are right, when we know we are wrong, only engenders disrespect for the institution of our selves.  But I digress.  As much as I hate the way the President’s laughing smugness sounds like fingernails on a chalkboard — you have to be pretty old to even know what fingernails on a chalkboard feel and sound like and I can’t believe how old I am getting — I gotta admit that my instinct to defend the “Johnson Amendment” is based more on my . . . well, “disdain” for the messenger, than out of a disagreement with the message.  By the way, we all know that LBJ had the prohibition  inserted because he wanted to shut down a nonprofit political opponent, but was it called the “Johnson Amendment” before the Oangefuhrer started using that phrase? The prohibition against campaign intervention might just be defensible as a substantive matter, particularly if we think of tax exemption as public subsidy.  The public, the argument might assert, should not be forced to subsidize political speech with which even a minority of people disagree.  A weak argument, in my view, but worth considering.  Deep down inside, though, we know the prohibition against campaign intervention as it applies to religious worship is unconstitutional.  The best evidence of that is that the Service is loathe to enforce it against worship leaders.  Something about that First Amendment, free exercise thing, a government employees pledge to “support and defend the Constitution.”.  So the four Pinnochios awarded to the President are well-deserved, but let’s admit that the President’s exploitation of the executive order’s “sound and fury” is bottomed on his innate ability to recognize when a legal doctrine is no more than a house of cards.  So it is that the prohibition against campaign intervention continues to engender disrespect for the IRS (through no fault of its own) and the law itself.  Its stupid and we should get rid of it, insofar as religious organizations are concerned.

Darryll K. Jones