The National Press Club Johnson Amendment debate: Free Speech in the PulpitCBN News reports: “A debate at the National Press Club, Wednesday, centered on the question of whether pastors should be able to endorse candidates or say whatever they want about politics from the pulpit. Ben Bull of the Alliance Defense Fund, the Christian legal group that sponsored the debate, said pastors’ free speech shouldn’t be censored, but that’s what present law does.” ADF Attorney Daniel Blomberg has provided a partial summary of the debate as well as some introductory comments. A shorter version of Daniel’s summary has also been posted on Townhall by Garrett Murch. Learn more about the ADF Pulpit Initiative THE DEBATERS
-Ben Bull: Bringing the debate’s practicing attorney perspective, Bull has been lead counsel on over 300 trial and appellate cases, including over 35 reported decisions in the First Amendment area. He’s the Chief Counsel at ADF and has been involved in the founding or leading of a half-dozen civil rights organizations, including several international ones. Bull has spoken on First Amendment litigation to a variety of audiences, from the Department of Justice and the American Bar Association to the Today Show, Crossfire and National Public Radio. -Douglas Laycock: Laycock is the debate’s expert in religious liberty. A professor at the University of Michigan Law School, Laycock has written several law review articles on the issue in major scholarly journals, including Harvard Law Review and Columbia Law Review, and is co-editor of a recent book on the conflicts between same-sex “marriage” and religious liberty. Not simply an ivory tower guy, Laycock has also argued several religious liberty cases in courts, including at least one before the U.S. Supreme Court.
-Donald B. Tobin: Tobin is definitely the tax man of this debate. He has extensive experience in the area, having served as staff in the U.S. Senate’s Budget Committee, as an appellate attorney in the tax division of the Department of Justice, and currently teaching on federal income taxation as a professor at Ohio State University’s Moritz College of Law. He also recently published a law review article on why he believes the Johnson Amendment protects both churches and democracy. -Barry Lynn: Lynn brings the combined angle of clergyman and attorney, as he is both an ordained minister in the United Church of Christ and a graduate of Georgetown University Law Center. Lynn began his career as counsel for the United Church of Christ and later worked for the ACLU before becoming executive director for Americans United for Separation of Church and State. He does a significant amount of media, providing interviews with The Today Show, Crossfire, Nightline, and MSNBC’s Countdown with Keith Olbermann INTRODUCTION
SUMMARY OF THE DEBATE: Steffen Johnson of Winston & Strawn is our moderator and he goes out of his way early on to assure us that he, Steffen Johnson, is not the author of the Johnson Amendment (“JA”). Johnson relates stories about how some churches go out of their way to respect the JA, but others do all they can to get around it. For instance, one pastor introduced a candidate for governor saying that, while he could not endorse the candidate because of the JA, if he could endorse the candidate, he certainly would. Ben Bull is our first debater and Barry Lynn will respond to him. Douglas Laycock will start the second round of debaters and Donald Tobin will provide rebuttal. After the debaters go back and forth a bit, the audience will have about a half hour to ask questions. Bull jumps right in—there’s something wrong with a law written by politicians that protects politicians from criticism, he observes. He then goes on to the shady history of the JA, which he describes as a “power play by [Senator Lyndon] Johnson to get at his critics” that didn’t even get a full day of debate in the Senate. Problem 1: The JA prevents pastors from speaking on moral issues that clearly favor one candidate over another. Bull identifies Lincoln’s election as a clear example—the most important distinction between Lincoln and Douglas was slavery, a moral issue that, if the JA had existed then, pastors could not have spoken about. JA creates a two-tier system of churches—those who agree with the government and stay silent about politicians and those who disagree with the government are taxed by government. And Bull points out if the JA is constitutional, then government can condition receipt of tax exemption on any basis—acceptance of same-sex “marriage,” willingness to allow women in the priesthood, etc. Bull cites several constitutional problems with the law, including the vagueness of the law which violates Due Process protections. He notes that the IRS itself doesn’t even know what a “campaign” is, what the “magic words” are that can turn issue advocacy into campaign advocacy, and that pastors can accidentally violate the JA. The IRS’s test itself is a shifting “facts and circumstances” calculus that produces unreliable results. Barry Lynn Notes that Congressmen often don’t know what they’re voting for, and that the JA itself was enacted in a non-insidious way. The JA is, in fact, “just right” and perfectly strikes the balance on this issue. Pastors are free to speak on moral issues and most pastors both like and understand the JA. Cites Martin Luther King, Jr. and JFK as sources of support for the JA, although not through direct endorsement. Argues that both Rev. Falwell and Rev. Wright used their pulpits to speak out on political issues, so the idea that the pulpit is under attack by the JA is false. Tax exemption for churches is a privilege and not a right. It is not mandated by the constitution. Churches must simply play by the same rules as everybody else—all other non-profits face the same non-partisanship rule. If churches were exempt, this wouldn’t be fair at all—churches would be able to simply collect money for pastors and their families. There’s no cost imposed by the JA, just a regulation on conduct. The IRS has to draw lines, and it has issued clear guidelines on what partisanship. Am I about to say something from this pulpit which is designed to promote or oppose someone running for public office? If so, don’t say it and you’ll never get in trouble with the IRS. The IRS is cutting churches too much slack. AU reports churches regularly. Lynn is “glad that some churches have been penalized, and hope[s] those that flagrantly violated the law on Sept. 28 are penalized as well.” Douglas Laycock Starts off by pointing out that the rules in question today have nothing to do with separation of Church and state. Notes that the whole history of the country is riddled with religious commentary on politics and morality, many times expressly supporting candidates and many more times supporting moral issues that necessarily support a particular candidate for office. The issue is instead about tax policy and a level playing field. As applied to expenditures of cash, the JA is just fine. However, as applied to sermons, the JA is entirely wrong. When a religious leader speaks on a moral issue with religious implications, he is speaking under the protection of core First Amendment principles. Points out the major consequence of the enforcement of the JA against a church is not removal of church tax exemption but rather the removal of tax deductibility for donations. A church cannot be a 501(c)(4) and preach a sermon. Moral speech by a pastor cannot be replaced by a functionary hired to run a (c)(4). No alternate means of speech are available for churches. Notes that doctrine of “unconstitutional conditions” is increasingly weaker in modern jurisprudence. But the Supreme Court will eventually “gag” on certain conditions, no question. And Laycock believes that a sermon constitutes that limit. Donald Tobin Used to teaching tax, so he’s used to hostile audiences that don’t want to hear what he has to say. Tobin wants to frame the issue as one of tax law. 501(c)(3) is a benefit that Congress provides to certain organizations, and it doesn’t have to reward everyone with that status. The burden of taxes fall on everyone, and non-taxed organizations are the exception to that rule, and Congress can place limits on who it subsidizes. Congress can reasonably try to prevent non-profit organizations from abusing the benefit in a variety of ways, including intervention in a political campaign. Tobin says that churches just shouldn’t want to participate in politics—it will create a two-tier system of churches, where churches become patrons of politicians based on how well they support the politician during a campaign. Churches can participate in campaigns, but they can’t do so and still keep their tax exemption. Is sympathetic to argument that speech from pulpit should be particularly protected, but makes it unfair because then churches get special benefits that no one else can get (even though many other groups actually do get these “benefits” without the burdens placed on churches—DHB note). That would violate the Establishment Clause. Thinks ADF is reasonable to bring the case, though, since the law is still up in the air for now. Bull’s Response Churches have never paid taxes—they have always been exempt. The JA didn’t grant churches a tax exemption, it recognized the existing exemption. Responds to the canard that Congress doesn’t want to subsidize political activities by pointing out that a ton of non-profits are tax exempt but don’t suffer from the church’s restrictions. Churches aren’t preferred, they’re targeted. Under Smith and Lukumi, 501(c)(3) is not a generally applicable law and thus runs afoul of free exercise. Responds to quid pro quo argument, noting that the government cannot penalize the exercise of a constitutional right by removing a benefit they were entitled to receive (essentially, the unconstitutional conditions argument). Notes that pastors can go on CNN and announce to the nation that he supports a candidate, but he can’t go to his own church and make the same statement. Further, he can oppose judicial appointments and executive branch appointments in church Lynn Partisanship is outlawed, but not issue advocacy. Pastors know this. Pastors aren’t afraid of the government, they’re afraid of their congregations—they don’t want to be thrown out by their congregants. And pastors should fear that—it’s inappropriate for pastors to speak on this. An endorsement by a preacher on TV is very valuable, and thus must be regulated. If we allow pastors to preach from the pulpit, then it’ll inevitably degenerate into making churches political rallies and making pastors fund-raisers. Does think we should call 501(c)(3) a gag rule, since ADF supported the U.S. government’s prevention of . . . Laycock The issue isn’t whether churches should speak on these issues, but whether the government can force them not to. The purpose of this rule is to prevent money from being laundered—and since there’s no identifiable expenditure for a sermon, sermons shouldn’t be regulated. Drawing this line would be much clearer than the current vague rule. Also, we could just adopt the lobbying rule for church campaign speech, allowing churches to speak on candidates but not up to the point that church’s substantial money and efforts are going to supporting campaigns. The no-substantial part rule (lobbying) would avoid Tobin’s Establishment Clause concern, but even if not, churches are sufficiently unique that they would qualify for being treated differently. And if any other organization has a sufficiently special spokesman who speaks with particular moral authority, then they may partake in the “carve-out” for churches. IRS cannot and will not enforce the JA and is simply intimidating churches into silence, which is no way to run a government. Tobin Corruption, conduit, and chosen one—the problems with doing away with the JA. The JA is “a mess,” but the solution isn’t throwing out the whole JA. There may be vagueness problems, but not with Laycock’s focus on the fact that sermons don’t cost money doesn’t solve the problem The JA actually was well drafted and was debated significantly over a year in advance. New law review article on that. When churches play games, pretending not to break rules when they are, churches are harming their moral authority. He has no moral problem with the Pulpit Initiative, though. Pastors have legitimately concluded that the law is no good and are trying to challenge the status quo very openly and publically, looking for a resolution to the issue. Questions: (1) Can churches make clear moral statements that say, across the board, no person can rightly support a candidate who supports X moral issue? a. Lynn: AU filed a complaint in such a situation regarding a pro-life proclamation, though it generally shies away from it. (2) May a church excommunicate a member when that person is a candidate and who supports abortion, and then explain to its members why it is doing so? a. Lynn: A church can excommunicate its member, but it can’t take out a full page ad or speak outside its own congregation to explain. (3) Sermons have no incremental costs (people don’t support the church to pay for a particular sermon, that is); would that apply to a sermon broadcast on TV? a. Laycock: Test is focused on whether the restriction on speech is viewpoint neutral; if the government is trying to stop a significant threat to an important interest and isn’t burdening constitutional rights too much, then the government can regulate. Most political money is spent on buying TV time, so it’d be okay for the government to make a flat ban on broadcasting sermon endorsements. (4) If there’s no coordination of pastor’s speech and a politician’s campaign, and the pastor is just self-initiating his support, would you be in favor of allowing the pastor to speak then? a. Tobin: I’m not naïve; when politicians run elections, they play games. They understand who their friends are and they’ll pay them back. The history of the world shows that allowing churches to speak on these issues is dangerous. (5) Speak about subsidy argument. a. Tobin: I don’t support hyper-regulation of churches. This debate is just about subsidy, not a penalty. Congress can condition subsidies. |