GOP religious freedom bill restores free speech, not 'dark money'

Mandi Ancalle is General Counsel for Government Affairs at Family Research Council. This article appeared in The Hill on May 9, 2017.

The House Oversight and Government Reform’s Subcommittees on Government Operations and Health Care, Benefits, and Administrative Rules recently held a hearing, Examining a Church’s Right to Free Speech.

I had the opportunity to serve on the panel with Catherine Engelbrecht, of True the Vote, Christiana Holcomb, of Alliance Defending Freedom, and Rabbi David Saperstein, who served in the Obama administration as Ambassador-at-Large for International Religious Freedom.

Rabbi Saperstein is a fantastic and intellectually honest individual who has made great strides on behalf of religiously persecuted people across the globe, and particularly in the Middle East. While Rabbi Saperstein is undoubtedly an expert on international religious freedom, he and many Democrats on the Committee did not appear to be familiar with the legislative initiative to fix the Johnson Amendment, the Free Speech Fairness Act (H.R. 781, S. 264).

Congressional Republicans are not calling for a full repeal of the Johnson Amendment. In fact, Representative Jody Hice (R-Ga.), who served briefly as chairman for purposes of the hearing, introduced the Free Speech Fairness Act with House Majority Whip Steve Scalise (R-La.) and Senator James Lankford (R-Okla.), in order to roll back a problematic part of the Johnson Amendment.

The idea behind the Free Speech Fairness Act is to restore the First Amendment freedom of speech to pastors and other 501(c)(3) organizations’ leaders, while ensuring churches and other non-profits do not become about “dark money” or transition into political action committees. The Free Speech Fairness Act is all about speech. It does not allow 501(c)(3) organizations to begin purchasing political campaign ads, or to otherwise create a cash flow of “dark money” for politicians.

During the course of the hearing, Rabbi Saperstein raised an interesting objection that is not directly addressed in the Free Speech Fairness Act, and that is the question of whether people can donate money to 501(c)(3) organizations for endorsements.

There’s a two-part response to that question: First, in their individual capacities, pastors and 501(c)(3) leaders can already make endorsements and, technically, could make a personal endorsement in exchange for a donation today. However, under the Free Speech Fairness Act, because 501(c)(3) organizations cannot spend money on campaigns, liberal mega-donor George Soros and the libertarian mega-donor Koch Brothers will likely continue to contribute their millions of dollars to political action committees and other 501(c)(4) organizations in order to directly impact candidates and their campaigns.

There can, quite simply, be little bang for a political buck to a 501(c)(3) organization under the Free Speech Fairness Act.

Rabbi Saperstein also raised a question about whether churches actually want changes to the Johnson Amendment. The answer is an emphatic “yes!” In fact, the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention submitted a statement of support for the Free Speech Fairness Act for the record at the hearing. While ERLC may have concerns about churches becoming too political, they understand that it is “fundamentally not the government’s job to make that decision for churches.”

The fact is, churches who do not wish to engage in political speech or to endorse political candidates will not be forced to do so after the Free Speech Fairness Act becomes law; rather, churches who do wish to engage politically will no longer be unfairly forced by the government to remain silent.

The United States has a long history of pastors being involved politically. Since the birth of our nation, pastors and churches have been at the forefront of shaping public debate and voters’ choices regarding their public servants. This began with the Black Robe Regiment of pastors who also served as military leaders during the American Revolution and was forged during the civil rights movement of the 1960s when pastors like Dr. Martin Luther King Jr., spoke out forcefully from the pulpit on political matters.

For almost 200 years, the religious, educational, and charitable work of 501(c)(3) organizations, and their tax exempt status, did not compromise their ability to engage on political candidates and issues. The free speech rights of 501(c)(3) organizations and their leaders should be restored, and the Free Speech Fairness Act is the precise vehicle for creating a proper balance in which pastors are liberated without allowing churches to become political action committees.