Senate parliamentarian: Thou shalt not repeal the Johnson Amendment by reconciliation

Live by the parliamentarian, die by the parliamentarian? The effort to include a repeal of the ban on partisan activities by churches and other charities got blocked from the Republican tax bill in the Senate after a challenge from Democrats. That puts an end to the effort to repeal the Johnson Amendment, which had been a priority for Donald Trump:

Sen. Ron Wyden (D., Ore.) says the chamber’s parliamentarian has blocked a proposal to let churches and charities engage in partisan politics, keeping it out of the final tax bill set to be unveiled Friday.

The repeal of the Johnson Amendment was in the House tax bill but not in the Senate’s version, and it was a priority for President Donald Trump during the 2016 campaign.

Republicans are advancing the tax bill under procedures known as reconciliation. That lets them pass the measure with a simple majority in the Senate and thus no Democratic votes. But it also comes with constraints, namely the Byrd rule. That law, named for the late Sen. Robert Byrd (D., W. Va.), prevents reconciliation bills from containing provisions that aren’t primarily fiscal in nature on a simple-majority vote.

This doesn’t put much of a dent in the progress of the tax bill. House Republicans will likely take it in stride, even though they have had it in their version all along. Senate Republicans had left it out of their final version of the bill, likely guessing that parliamentarian Elizabeth MacDonough would rule it out of order for consideration under reconciliation. While it does involve tax status, the impact and intent of the Johnson Amendment are not fiscal, but rather an attempt to separate churches from electoral politics. Whether there is wisdom or not in that intent is a debate that has been percolating for a while, but not all debates qualify under reconciliation.

That doesn’t mean Republicans will simply shrug their shoulders. Sen. James Lankford put their objections on the record anyway:

“I’m disappointed in the decision of the parliamentarian to not allow the revised text of the Johnson Amendment into the tax reform bill,” said Sen. James Lankford (R-Okla.) “The federal government and the IRS should never have the ability, through our tax code, to limit free speech.” …

“Nonprofits are allowed to lobby Congress or their local elected officials, but the ambiguity of the current tax code keeps non-profits in constant fear that they might have crossed a line that no other organization has to consider,” said Senator Lankford. He argued the repeal language that Republicans crafted would still have prohibited any campaign financing via non-profits.

But the Joint Committee on Taxation, Congress’s official scorekeeper, estimated that the repeal of the Johnson Amendment would cost the government about $2 billion as the rich donated more money to religious institutions and nonprofits and got tax write-offs for doing so.

True, but then again, it doesn’t have to get repealed under reconciliation either. If his argument works well enough, Lankford could offer a separate bill to repeal the Johnson Amendment, either as a stand-alone bill or as a rider on a must-pass appropriation bill. He’d have to get enough Democrats to pass a cloture challenge, and after this month it will take nine votes rather than eight, thanks to this week’s special election in Alabama. Doug Jones might go for the idea, as politically active churches might boost his fortunes as well, and perhaps Joe Manchin might be convinced to come along for the same reason. After that, though, the pickings look mighty bleak.

Frankly, this is more a cause for relief than an annoyance. Republicans might have had an argument for considering this under reconciliation, but it’s an otherwise ill-considered idea. The law of unintended consequences would come into play in a Johnson Amendment repeal, and it might end up backfiring by amplifying the government’s reach into religion rather than the other way around, as I wrote in April:

It’s not too difficult to see where this could lead; “churches” would pop up like weeds after a spring rain to funnel cash for electoral efforts without the oversight in place now. To offer up one hypothetical, would conservatives want to see a thousand “First Church of Clinton” locations open for business between now and 2020, especially given the opacity of the Clinton Foundation’s finances?

That leads to another potential issue, too, one that could backfire on the religious-liberty cause. If this new system resulted in that kind of abuse, pressure would build on the federal government to decide what constitutes a real church as opposed to a political-front operation. That problem doesn’t exist now because the Johnson amendment protects against the need for it, as a practical consequence if not an intentional outcome. Those issues do come up already in granting tax-exempt status (as well as in other contexts on rare occasions, such as drug and prostitution enforcement), but overt political campaigning will add lots of incentive for government to intervene, and that may not depend on who’s in power at the moment.

Once we start down that road, would government remain limited in its ability to “license” churches through tax-exempt status recognition, or would the definitions of legitimate religions depend on their level of political correctness? Which churches will have their current tax-exempt standing stripped from them for falling on the wrong side of an election, or of the dominant culture? As a practicing Catholic I might not have as much to worry about as a congregationalist, but given the attempts to suspend the free exercise of religion by the Little Sisters of the Poor when HHS determined that they were not sufficiently a true religious organization, I’m not terribly sanguine about the long-term viability of religious liberty with this change.

Leave the Johnson Amendment alone. Stick to tax reform … or in this case, we should say try real tax reform for a change.