Federal Judge J. Campbell Barker ruled against a lawsuit in Texas on Tuesday that would allow political speech in the pulpit by seeking a consent agreement to the Johnson Amendment, reports The Wall Street Journal.
The Johnson Amendment was introduced by then-Texas Senator Lyndon B. Johnson (D) into the tax code in 1954. Under the amendment, tax-exempt organizations, such as churches and non-profits, are not allowed to endorse or oppose political candidates. That way, money from donations, which are tax-deductible, are not used for political campaigning.
The case was brough forth by the National Religious Broadcasters (NRB) and several Texas churches. With help from Trump administration, they sought an agreement that would allow them to speak politically during religious activities without threat to their tax-exemption status. The agreement would only apply to those in the case, but it would be a signal to the Internal Revenue Service (IRS) to apply the law generally.
Mike Farris, general counsel for NRB, told Tony Perkins on “Washington Watch” that this ruling by Barker, a Trump appointee, is not the end.
“Federal district judges, even acting in good faith, can get the law wrong, and we think that that's what happened here. We believe that the technical grounds of jurisdiction that the judge acted on have a more complete story that wasn't considered, even though we argued it,” Farris says.
Farris admits he was surprised by the ruling. Before last Thanksgiving, oral arguments were conducted for approximately two hours, he says, but he has no recollection of discussions regarding the Anti-Injunction Act, which the judge ruled on.
“(It) is a long-standing law that says you can't sue about your taxes. You have to pay your taxes first and then sue to get them back. Well, that's nice if we're talking about ordinary tax liability, but here we're talking about freedom of speech,” Farris states.
In this case, Farris explains there is a more appropriate rule that is endorsed by the Supreme Court and other appellate courts that goes along with the Anti-Injunction Act. As he puts it, a person doesn’t have to violate the law first to challenge the constitutionality of it.
The ruling in this case, however, goes against that precedent.
“So, what the judge said, basically, is the only way for non-profits to challenge the Johnson Amendment is to get in trouble for violating the Johnson Act, and that's just simply contrary to Supreme Court decisions,” Farris says.
NRB is expected to appeal to the Fifth Circuit, Farris said. The Fifth Circuit is widely considered the most conversative district court, encompassing Texas, Louisiana, and Mississippi.
The encouraging part, he says, is that winning this case in the appeals court will be better in the long run as it would be a judicial decision setting future precedent. That is better than reaching a consent decree in a district court.
“Obviously, when you have a consent decree, you are 100 % assured of a victory, but a consent decree in a district court isn't as valuable as an end-of-the-line victory in the Court of Appeals or especially in the Supreme Court of the United States,” Farris states. “There's no guarantee we're going to win, although we think our chances are good. But if it does turn around, and we do win in the end, then that's great news.”
Critics highlight the inconsistent application of the Johnson Amendment as it is used as more of a threat than an actual application.
One-sided origins
Meanwhile, Farris says the amendment has a partisan history as a pragmatic rule to prohibit one from endorsing candidates that the Democrats don’t and opposing those that the Democrats support.
“The Democrats got one rule, the Republicans got another, generally speaking. There are rare examples to the contrary, but we gave the court dozens and dozens and dozens of examples of Democrat nonprofit newspapers endorsing candidates, of Democrat-leaning churches endorsing candidates, and so on,” Farris states.
Meanwhile, Farris says his church was sanctioned by the IRS because his pastor, Gary Hamrick, preached an election sermon on what the Republican and Democratic platforms say.
Hamrick even said, he states, that one didn’t have to vote for Donald Trump.
“I mean, it doesn't help that much on the technical issue of the Anti-Injunction Act, but on the merits, it helps a lot,” Farris answers. “In fact, we put into the complaint several dozen examples of national Democrats, Kamala Harris, Barack Obama, Hillary Clinton, and so on, standing in churches, being endorsed by the pastor, making a political speech, asking for votes, and nothing was ever done.”
