Democratic leaders have pulled out the stops to try to help Terry McAuliffe in his struggling campaign for governor in Virginia. Figures from Barack Obama to Stacey Abrams have stumped for McAuliffe who is in a tight race with businessman Glenn Youngkin. The key for McAuliffe is black voters, and to spur turnout Vice President Kamala Harris has taped an endorsement of McAuliffe that is reportedly being played at hundreds of African American churches around the state. The problem is the “Johnson Amendment” makes such political pitches in churches a violation of federal law. Making matters worse, this knowing violation occurred just days after the filing of a complaint against White House Press Secretary Jen Psaki for clearly violating the Hatch Act in using the White House press room to support McAuliffe.
The video was aired last Sunday and will air again next Sunday. It was also quoted and aired by CNN. As Harris said in her much maligned “space video,” you can see the violation of federal law “with your own eyes.”
It is part of McAuliffe’s push called “Souls to the Polls” and is a full-throated endorsement of McAuliffe that calls on black churches to turn out for his election. Harris declares “I believe that my friend Terry McAuliffe is the leader Virginia needs at this moment.”
NEW — More than 300 Black churches across VA will hear from @KamalaHarris btwn Sun. and November 2 in video message that will air during morning services as part of outreach effort aimed to boost @TerryMcAuliffe.#VAGOV
— Eva McKend (@evamckend) October 16, 2021
The problem is that such direct politicking in tax-exempt churches has been unlawful for decades. Section 501(c)3 states:
Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
That bolded language is the “Johnson Amendment” prohibition and expressly includes “the publishing or distributing of statements.
The IRS makes clear that such violations will not be tolerated. The agency warns that tax-exempt groups “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” It further stresses:
“Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.”
This was a direct political pitch reportedly played in hundreds of churches. Of course, the White House could claim that any violation was committed by the churches if they played the video in prohibited areas. The churches not the White House would be the 501(c)3 entities subject to any enforcement. That assumes that this was not created for that purpose, but it would effectively throw the churches under the bus. The ultimate penalty is the loss of their tax exempt status, though that is unlikely given the lax enforcement in past cases. Nevertheless, there is a legitimate interest in whether the White House knowingly participated in an effort to campaign in churches in violation of their federal obligations.
What is most hypocritical is that the Democrats used the opposition to the Johnson Amendment by former President Donald Trump as a rallying cry in the last election. Trump boasted that he got rid of the Johnson Amendment. That was not true. Here is the critical language in the Trump executive order:
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.
The order expressly requires adherence to federal law and only states that “moral or political issues” may be discussed “from a religious perspective.” Harris is calling souls to the polls in a straight political speech. So even under Trump’s order, this would be a violation.
Putting aside any federal violation in such pitches, Trump’s desire to get the vote out through evangelical churches was widely denounced as an attack on the separation of Church and State. That was before McAuliffe ran into trouble in what was viewed as a reliably blue state that Biden won by a wide margin. Now the same media and legal figures are silent.
If this is indeed played in churches (as opposed to simply posted on Internet sites), it does appear a premeditated and unambiguous violation of the federal law governing churches as non-for-profit institutions.