S. 264 / H.R. 781

“The Free Speech Fairness Act”

In January 2017, Senator James Lankford (R-OK) introduced this bill on the Senate side and Representatives Steve Scalise (R-LA) and Jody Hice (R-GA) introduced it on the House side. These bills are identical to a bill introduced last Congress in conjunction with Pulpit Freedom Sunday, an annual event during which certain groups try to persuade religious leaders to break federal law and endorse candidates for public office.

The bill does not fully repeal current law, but significantly undermines it. It would allow tax-exempt organizations—both houses of worship and secular nonprofits—to make statements endorsing or opposing candidates for public office so long as those statements are made in the ordinary course of carrying out their tax-exempt purpose and don’t incur more than de minimis incremental expenses. Although this might sound like a narrow exemption to current law, it is quite broad. For example, a house of worship could include an endorsement of a candidate in every sermon or Bible class, or any other activity that could serve another purpose other than just the endorsement. The houses of worship could also include an endorsement in its bulletins, newsletters, and other materials.  

 

H.R. 172

This bill, introduced by Representative Walter Jones (R-NC) in January 2017, would completely repeal the law that prohibits tax-exempt organizations from endorsing or opposing candidates. Both religious and secular tax-exempt organizations could “participate in, or intervene in (including the publishing or distributing of statements), any political campaign” supporting or opposing a political candidate for public office. Jones has been introducing this bill for more than 15 years. In 2002, the House actually voted down this bill 178-239, with 46 Republicans voting against it. 

 

Draft “Religious Freedom” Executive Order

In early February 2017, a draft "religious freedom" executive order was leaked. It contains a provision that would undermine the law that prohibits tax-exempt organizations from endorsing or opposing candidates. Although the provision would not repeal the law fully, it would limit the ability of the Internal Revenue Service to enforce it. That the President is contemplating executive action on this issue is no surprise considering he has vowed to “get rid of and totally destroy the Johnson Amendment.” It is unclear whether the President will ultimately sign this executive order or any of the provisions within it.