CONGRESS SHALL MAKE NO LAW

It is amazing how much ink has been used to explain those four words and those that follow in the First Amendment.  Added to the Constitution by amendment in 1789, the First Amendment was intended to enshrine the fundamental law of a free society in an open democracy.  Nevertheless, curtailing free speech has often been the focus of the federal government.

 On May 4, 2017, the President entered an Executive Order requiring repeal or amendment of regulatory pronouncements limiting freedom of expression which included:

 “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.”

 Underlying statutes, of course, cannot be repealed by Executive Order.  But, enforcement based solely on “participation or intervention in a political campaign” of a type that has not been previously treated as such for other entities would seem to reduce enforcement to instances where the non-profit or church was actually and directly financially involved in a material way, rather than simply when a speaker expresses a political opinion or donation of money.  Advocacy is the least profitable endeavor.

 On this subject, urban legend has ruled, and was far more interesting than fact.  Even finding a case in which the IRS threatened tax exempt status over any political activity is challenging.  Thus, the Executive Order might not have much practical impact.

 Nevertheless, regardless of the lack of numerosity of published cases, the chilling effect cannot be calculated and there the Executive Order might have an effect.  Most church lawyers have at least once been asked about the extent to which political activity or commentary is permitted before tax exempt status is at risk.  The answer should have been simply “Congress shall make no law… .”  The Executive Order might be a step back to 1789.

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