Donald Trump is right.
As the author of a book that denounces Donald Trump as a corrupt, sexist, racist, lying, stupid conspiracy nut, it is not easy for me to say that. But sometimes Trump can inadvertently stumble into the right position when he’s busy appeasing a political constituency. And that’s the case with Trump’s approach to political speech by nonprofit groups.
In 1954, Senate Majority Leader Lyndon B. Johnson, worried in the era of McCarthyism that nonprofit organizations might be used to attack his re-election campaign, added a legislative amendment strictly banning 501(c)(3) organizations from supporting or opposing political candidates. For many years, conservative Christian activists have called for repealing the Johnson Amendment, and Trump became their crusader, announcing during the 2016 campaign, “I am going to work like hell to get rid of that prohibition and we are going to have the strongest Christian lobby …” On Feb. 2, President Trump participated in the National Prayer Breakfast, where he reiterated his campaign promise: “I will get rid of and totally destroy the Johnson Amendment.”
Trump is no defender of free speech. To the contrary, he is one of the greatest enemies of civil liberties ever elected president in modern times. I devote a chapter in my book to Trump’s support for repression, including his proposed ban on Muslims (now accompanied by “extreme vetting” of political views), his statements advocating for the torture of enemy prisoners and even the murder of their families, and his calls to dramatically loosen libel law in order to attack freedom of the press. Trump wants to repeal the Johnson Amendment for the very same reason that LBJ passed it: to serve his political interests. But that doesn’t mean he’s wrong.
The Johnson Amendment has a severe impact on political speech. Earlier this year, when I was helping to organize one of the Writers Resist events held nationwide the week before Trump’s inauguration, I encountered that kind of fear from the national organizers of the movement: “We urge local organizers and speakers to avoid using the names of politicians or adopting ‘anti-’ language as the focus for their Writers Resist event. It’s important to ensure that nonprofit organizations, which are prohibited from political campaigning, will feel confident participating in and sponsoring these events.” When the Johnson Amendment can scare the politics out of an event that focused on speaking out against Trump’s policies, it shows how powerful this law is -- and how destructive.
That is especially true on college campuses, where administrators are willing to violate the free speech of their students and faculty out of a misunderstanding of the Johnson Amendment. Invoking 501(c)(3)s has become the leading slogan for justifying censorship on campuses, despite numerous IRS and court rulings to the contrary. The Johnson Amendment is perhaps the most common justification for censoring political speech on college campuses.
After some colleges banned Michael Moore and other speakers with political opinions during the 2004 election, the American Association of University Professors’ Committee A on Academic Freedom and Tenure in 2005 issued a statement on “Academic Freedom and Outside Speakers” that warned that because of “the danger that a group’s invitation might violate Section 501(c)(3) of the Internal Revenue Code, college and university administrators have displayed an increasing tendency to cancel or to withdraw funding for otherwise legitimate invitations to noncampus speakers.”
Yet the repression has continued. In 2008, the University of Illinois told faculty and staff members that they could not wear political buttons on campus or even put a partisan bumper sticker on their car if it was parked in a campus lot. The College of St. Catherine that year disinvited a series of political speakers.
Every election year, the Foundation for Individual Rights in Education issues a statement explaining to colleges why 501(c)(3) regulations cannot justify censorship, and every election they deal with colleges trying to suppress political speech in the name of appeasing the IRS. In 2016, American University refused official recognition of Students for Rand (but reversed its error), while Georgetown Law prohibited students supporting Bernie Sanders from tabling on the campus.
DePaul University in 2016 warned students that because it is a 501(c)(3) organization, the college must ban all “partisan political fliers, posters, signs or images on the university bulletin board, buildings, electronic message boards, forums or sidewalks.”
Even public universities are affected by the paranoia over political speech, since virtually all public colleges have nonprofit foundations. Recently, a University of South Alabama student was ordered to remove a Trump/Pence sign in his dorm window, which the administration claimed was forbidden due to 501(c)(3) regulations.
In 2017, Stanford University administrators initially banned law professor Michele Landis Dauber from using a photo of Donald Trump on a flier promoting a conference on sexual assault that was held on May 1-2, even after Dauber said she offered to remove Stanford’s name and pay for the fliers herself. An associate dean emailed Dauber, saying, “We have been clear since January that these Access Hollywood images could give the appearance of partisanship, and since the event is [a law school] event, they shouldn’t be used in the marketing of the event. This is per university policy.”
According to FIRE, “One of the most common reasons colleges give for censoring political speech is that their status as a tax-exempt nonprofit requires them to remain politically neutral.” FIRE has noted, “Despite the existing IRS guidance, many colleges and universities take an overly cautious, overly restrictive approach to Section 501(c)(3) compliance, severely limiting or banning student partisan speech on campus or interpreting the use of any university resource by a student or student group as implicating the university in the activity.”
The act of banning a particular political activity, in fact, is far more likely to be a violation of 501(c)(3) regulations, because it involves administrative action to benefit or harm a particular political candidate.
None of the arguments on behalf of the Johnson Amendment are persuasive. LaShawn Y. Warren, vice president of the Faith and Progressive Policy Initiative at the liberal think tank Center for American Progress, has argued in defense of the Johnson Amendment, claiming that its repeal would “have a corrosive effect on the sanctity and purity of faith leaders’ messages.” I have never believed in nor cared about the alleged purity of churches kept “free” from politics. I certainly don’t think that government tax officials should be the ones enforcing “sanctity” on our preachers. Warren also wrote, “The elimination of the Johnson Amendment would create a substantial loophole in campaign finance law that could be exploited by those seeking to influence faith leaders and faith communities.”
The leading bills to repeal the Johnson Amendment are well written and narrowly tailored. HR 781 and S 264, the Free Speech Fairness Act of 2017, would protect all nonprofit groups (religious and otherwise) from punishment for “the content of any statement that: (1) is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (2) results in the organization incurring not more than de minimis incremental expenses.” This is a wise and essential change to the Johnson Amendment, one that would prevent nonprofit groups from being used as a front for campaign cash while allowing individuals at nonprofits to participate in political dialogue.
There are serious abuses of the nonprofit code for political purposes, when politicians control nonprofit groups and use them purely as tools to advance their political ambitions. Donald Trump used his now-defunct foundation to benefit himself for many years, buying not just paintings of himself but, according to some reports, even apparently paying for his son’s Boy Scout registration out of the foundation’s funds.
During the 2016 campaign, Trump regularly handed out checks from his foundation to charities at his rallies. Trump also gave $150,000 to the American Conservative Union Foundation to help secure prime speaking opportunities at the Conservative Political Action Conference, which aided his presidential ambitions.
But the Johnson Amendment does nothing to stop these illicit abuses, while silencing free speech at institutions with 501(c)(3) status (which now include virtually every public as well as private college in the country).
Will repeal of the Johnson Amendment cause conservative Christian groups to gain more influence over our political system? I don’t know, and I don’t care. If changing the Johnson Amendment can enhance everyone’s freedom to speak out, then it will be a good thing regardless of which ideological position gains the most votes.
However, there are two solid reasons why progressives should embrace changes to the Johnson Amendment. The Trump administration now controls the executive branch, and the potential power to use the IRS against its enemies. And a Pew Research Center survey found that 28 percent of black Protestants heard their clergy speak in favor of Hillary Clinton during the 2016 campaign, while only 4 percent of white evangelicals heard their clergy speak in favor of a presidential candidate (split between Clinton and Trump).
The best argument for repealing the Johnson Amendment is Trump himself: because he is a petty, vindictive, unprincipled president, it would surprise no one if Trump ordered the IRS to punish his political enemies by striking out against nonprofit organizations who dared to criticize his actions. Progressives need to join in the repeal of the Johnson Amendment for their own self-protection against the Trump Administration.
In his best-selling book Big Agenda, influential Trump supporter David Horowitz argues that conservatives “must begin every confrontation by punching progressives in the mouth.” Horowitz, who once proposed the Academic Bill of Rights to silence political speech by professors, calls upon Republicans to punch at left-wing nonprofit groups: “Why haven’t Republicans done something about this monstrous advantage provided to the left by the current tax code to shape what government does and does not do?”
Recently, the National Association of Scholars issued a call for censorship of civic engagement programs at colleges, and recommended that citizens “sue their host universities for each and every political act they commit. Lawsuits, and the threat of lawsuits, may actually prod academic administrators to shut down New Civics programs.”
On May 4, Trump signed an executive order declaring, “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 …”
This terrible executive order gives religious people special privileges under the law to engage in political expression forbidden to all others with different motives. Granting exemption from the law only for having a “religious perspective” discriminates against anyone with moral or political views that do not stem from a religious ideology.
But Trump’s discriminatory executive order makes it even more important for progressives to embrace a legislative modification of the Johnson Amendment that applies to all nonprofit groups, and helps end the wave of censorship in the name of tax law that pervades college campuses.
When it comes to repealing the Johnson Amendment, Trump and his allies are self-interested, partisan hypocrites, but this should not blind us to that surprising fact: Donald Trump is right.