[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING A CHURCH'S RIGHT TO FREE SPEECH
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTH CARE,
BENEFITS AND ADMINISTRATIVE RULES
AND THE
SUBCOMMITTEE ON
GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MAY 4, 2017
__________
Serial No. 115-29
__________
Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
http://oversight.house.gov
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Committee on Oversight and Government Reform
Jason Chaffetz, Utah, Chairman
John J. Duncan, Jr., Tennessee Elijah E. Cummings, Maryland,
Darrell E. Issa, California Ranking Minority Member
Jim Jordan, Ohio Carolyn B. Maloney, New York
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Justin Amash, Michigan Columbia
Paul A. Gosar, Arizona Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee Stephen F. Lynch, Massachusetts
Trey Gowdy, South Carolina Jim Cooper, Tennessee
Blake Farenthold, Texas Gerald E. Connolly, Virginia
Virginia Foxx, North Carolina Robin L. Kelly, Illinois
Thomas Massie, Kentucky Brenda L. Lawrence, Michigan
Mark Meadows, North Carolina Bonnie Watson Coleman, New Jersey
Ron DeSantis, Florida Stacey E. Plaskett, Virgin Islands
Dennis A. Ross, Florida Val Butler Demings, Florida
Mark Walker, North Carolina Raja Krishnamoorthi, Illinois
Rod Blum, Iowa Jamie Raskin, Maryland
Jody B. Hice, Georgia Peter Welch, Vermont
Steve Russell, Oklahoma Matthew Cartwright, Pennsylvania
Glenn Grothman, Wisconsin Mark DeSaulnier, California
Will Hurd, Texas John Sarbanes, Maryland
Gary J. Palmer, Alabama
James Comer, Kentucky
Paul Mitchell, Michigan
Jonathan Skladany, Staff Director
Rebecca Edgar, Deputy Staff Director
William McKenna, General Counsel
Kevin Eichinger, Senior Professional Staff Member
Jack Thorlin, Senior Counsel
Kiley Bidelman, Clerk
David Rapallo, Minority Staff Director
Subcommittee on Health Care, Benefits and Administrative Rules
Jim Jordan, Ohio, Chairman
Mark Walker, North Carolina, Vice Raja Krishnamoorthi, Illinois,
Chair Ranking Minority Member
Darrell Issa, California Jim Cooper, Tennessee
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Scott DesJarlais, Tennessee Columbia
Mark Meadows, North Carolina Robin L. Kelly, Illinois
Glenn Grothman, Wisconsin Bonnie Watson Coleman, New Jersey
Paul Mitchell, Michigan Stacey E. Plaskett, Virgin Islands
------
Subcommittee on Government Operations
Mark Meadows, North Carolina, Chairman
Jody B. Hice, Georgia, Vice Chair Gerald E. Connolly, Virginia,
Jim Jordan, Ohio Ranking Minority Member
Mark Sanford, South Carolina Carolyn B. Maloney, New York
Thomas Massie, Kentucky Eleanor Holmes Norton, District of
Ron DeSantis, Florida Columbia
Dennis A. Ross, Florida Wm. Lacy Clay, Missouri
Rod Blum, Iowa Brenda L. Lawrence, Michigan
Bonnie Watson Coleman, New Jersey
C O N T E N T S
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Page
Hearing held on May 4, 2017...................................... 1
WITNESSES
Ms. Mandi Ancalle, General Counsel for Government Affairs, Family
Research Council
Oral Statement............................................... 8
Written Statement............................................ 10
Ms. Catherine Engelbrecht, Citizen, Cat Spring, Texas
Oral Statement............................................... 16
Written Statement............................................ 18
Ms. Christiana Holcomb, Legal Counsel, Alliance Defending Freedom
Oral Statement............................................... 20
Written Statement............................................ 22
Rabbi David Saperstein, Former Director and Counsel, Religious
Action Center
Oral Statement............................................... 29
Written Statement............................................ 31
APPENDIX
Letter for the Record of the National Council of Nonprofits,
submitted by Mr. Krishnamoorthi................................ 68
Statement for the Record of the Ethics and Religious Liberty
Commission of the Southern Baptist Convention, submitted by Mr.
Jordan......................................................... 96
Statement for the Record of the Baptist Joint Committee for
Religious Liberty, submitted by Mr. Krishnamoorthi............. 97
Statement for the Record of Americans United for Separation of
Church and State, submitted by Mr. Krishnamoorthi.............. 106
Statement for the Record of the Center for Inquiry, submitted by
Mr. Krishnamoorthi............................................. 114
Letter of Support for the Free Speech Fairness Act, submitted by
Mr. Hice....................................................... 115
EXAMINING A CHURCH'S RIGHT TO FREE SPEECH
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Thursday, May 4, 2017
House of Representatives,
Subcommittee on Health Care, Benefits and
Administrative Rules joint with the Subcommittee on
Government Operations,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittees met, pursuant to call, at 10:03 a.m., in
Room 2154, Rayburn The Capitol, Hon. Jim Jordan [chairman of
the Subcommittee on Health Care, Benefits, and Administrative
Rules] presiding.
Present: Representatives Jordan, Meadows, Walker, Hice,
Issa, Massie, Grothman, DeSantis, Blum, Krishnamoorthi,
Connolly, Norton, Clay, and Plaskett.
Also Present: Representative Raskin.
Mr. Jordan. The Subcommittee on Health Care Benefits and
Administrative Rules and the Subcommittee on Government
Operations will come to order.
Without objection, the chair is authorized to declare a
recess at any time, and we will certainly have to do that in a
few minutes, because votes are going to be coming.
And we want to thank our witnesses, and we'll get to you in
just a minute. You know how this works. We do the opening
statements, then we get to your important statements, but even
before that, the chair notes the presence of our colleague,
Congressman Raskin of Maryland. We appreciate your interest in
this topic and welcome your participation today.
I ask unanimous consent that Congressman Raskin be allowed
to fully participate in today's hearing. Without objection, so
ordered.
We'll do a quick opening statement and then I'll turn to
our ranking member for the same, and then we'll try and get
through as many of you as we can before we have to recess for
votes.
I want to thank everyone for joining us today. We convened
this hearing to highlight the First Amendment and examine those
places in our great country where that right, that right to
free speech is being stifled and sometimes even silenced by
government. And unfortunately this is nothing new. In the
recent past, we've seen the IRS bogging down conservative
social welfare organizations, that's a nice way of saying it,
with an endless application process, holding them in
bureaucratic limbo for years and thereby curbing their First
Amendment rights. Never forget what they did, systematically
and for a sustained period of time targeted people for their
political beliefs. That should not happen in our great country.
We have seen public universities not allowing conservative
voices to be heard and we've seen government agencies levy
enormous fines for small, many times even returned, campaign
donations for candidates who might not have even made it on the
ballot.
The First Amendment is the First Amendment for a reason.
Our founders knew the ability to criticize our government was
of paramount importance. We must never forget those great
words: Congress shall make no law respecting an establishment
of religion or prohibiting the free exercise thereof, or
abridging the freedom of speech, or of the press or the right
of the people to peaceably assemble, and to petition the
government for redress of grievances.
To be clear, this freedom doesn't just protect a citizen's
right to speak out in the town square; it also protects speech.
Maybe it's a poster you draw, maybe it's where you choose to
give your money, maybe even what you wear.
Since our founding, nonprofits, like churches, have had the
ability to speak freely and educate their membership about
candidates or policies that align or contradict their interest
and values. That was until 1954, when as a political
retribution, then Senator Johnson, with no real debate, had
inserted language into a tax law that would bar nonprofits from
speaking in a political manner.
Since then, churches and other c(3)'s have had to decide
whether or not to directly violate the law and risk potentially
losing their tax status altogether or to practice a, quote,
studied vagueness or self-censorship trying to carefully
navigate what would or would not draw the attention of the IRS
speech cop.
Today we begin what I hope will be a series of hearings on
the First Amendment and where government agencies may in fact
be infringing and limiting individual's First Amendment
liberties. So we look forward to this series of hearings and
look forward to what we're going to hear today from our
witnesses.
And with that, I'd like to recognize our ranking member,
Mr. Krishnamoorthi.
Mr. Krishnamoorthi. Thank you, Mr. Chairman. And welcome to
our witnesses.
Mr. Chairman, I strongly support the exercise of free
speech by all, including churches and other charitable
organizations. In fact, there is a news item today, it has been
reported that President Trump will issue an executive order to
redirect or direct the IRS to use its discretion in enforcing
the Johnson amendment.
In fact, this order will have little effect. IRS rarely
brings enforcement actions against houses of worship that
engage in political activity, but this hearing is about
something far more significant than the President's actions.
Only Congress can make changes to the law, and today's hearing
is about what changes the Republican majority will attempt to
make to the tax deductibility of political contributions, and
whether those changes are justified, furthermore, what would be
the intended and unintended consequences of those changes. That
will be the subject of this hearing.
This hearing is not about free speech. It is about a scheme
to flood political campaigns with dark money. Let's be clear.
Current law does not prevent churches or charities from
speaking out on any issue. They can speak about all the hot
button issues of the day. They can lobby the government. In
fact, a group of 99 religious and denominational organizations
recently sent a letter to congressional leadership explaining
that they are currently able to, and I quote, use their pulpits
to address the moral and political issues of the day. They also
can, in their personal capacities and without the resources of
their houses of worship, endorse and oppose political
candidates.
Houses of worship can engage in public debate on any issue,
host candidate forums, engage in voter registration drives,
encourage people to vote, help transport people to the polls,
and even, with a few boundaries, lobby on specific legislation
and invite candidates to speak.
I'd ask unanimous consent that the letter written by 99
religious and denominational organizations be entered into the
hearing record.
Mr. Jordan. Without objection, so ordered.
Mr. Krishnamoorthi. In other words, current law does not
restrain the freedom of speech of houses of worship. However,
and this is important, current law does prohibit fat cat
political spenders from laundering their contributions through
churches and nonprofits and getting a tax deduction to boot,
but that is what some in this room want to do. They want to
funnel dark money into the political system through churches.
In short, this hearing is about money, not speech, pure and
simple.
Over 1,000 national and State nonprofit organizations wrote
a letter to Congress saying that current law, quote, shields
the entire 501(c)(3) community against the rancor of partisan
politics so the charitable community can be a safe haven where
individuals of all beliefs come together to solve community
problems free from partisan divisions.
It screens out doubts and suspicions regarding ulterior
partisan motives of charitable organizations, as undoubtedly
would occur if even just a few charitable organizations engaged
in partisan politics.
I'd ask unanimous consent that the letter written to us by
nonprofit organizations be entered into the hearing record.
Mr. Jordan. Without objection, so ordered.
Mr. Krishnamoorthi. Given that nonprofit organizations,
including charities, churches, and other houses of worship
support existing law, which prevents churches and charities
from becoming politicized, why would anyone want to alter the
existing law? The answer? To extend the avenues through which
dark money can flow into political campaigns. That is what this
hearing is really about. The consequences would be severe.
According to the nonprofit's letter, allowing political
money into churches and nonprofits would, and I quote, damage
the integrity and effectiveness of all charitable
organizations, and spawn litigation as innovative partisans
seek to expand gray areas in the proposed legislation.
In addition, the proposal, I quote, would damage the
Federal Treasury as people take tax deductions for political
contributions they could then funnel through charitable
nonprofits, undercut fair elections by providing a loophole to
avoid campaign contribution disclosure laws, and empower
politicians to exert pressure for access to charitable
foundation assets and charitable funds for their own partisan
campaigns rather than the public good.
So today's hearing is not about free speech, it is about a
plan to inject more dark money in politics through churches and
nonprofit organizations. This is a very, very bad idea. It will
have a corrosive effect on the churches that become super-PACs
and passthroughs for these campaign contributions and it will
further corrode our democracy.
Thank you, Mr. Chairman. I yield back.
Mr. Jordan. I thank the gentleman.
I now recognize the chairman the Subcommittee on Government
Operations, the gentleman from North Carolina, Mr. Meadows.
Mr. Meadows. I thank the chairman. I thank him for his
leadership. I thank all of you for being here.
Rabbi, it's good to have you back, I guess, in your
nonofficial capacity, but it's great to have you back as well.
I couldn't disagree more with the ranking member in terms
of the intent. You know, when we look at this particular issue,
it's about making sure that the churches have no voice at all.
And if we do not address it, the way that it goes, and many of
you can speak to this far more eloquently than I can. But this
is not about dark money. This is not about anything other than
free speech and making sure that what has historically been the
moral compass of this country from its very founding continues
to be the voice for the American people, and so I would
disagree with the characterization that is there.
As we look at this, I look forward to hearing your expert
testimony. And I'm going to yield the balance of my time to the
gentleman from Georgia, Mr. Hice.
Mr. Hice. Thank you very much, Chairman Meadows and
Chairman Jordan for having this joint hearing today. This is a
critically important topic. It has to do with the Federal Tax
Code and the prohibitions therein directed towards 501(c)(3),
organizations including churches and nonprofits and charitable
organizations, from engaging in any political speech. It's been
referred to as the Johnson amendment.
As the chairman referred to earlier, this amendment is an
accident in our Nation's history. It came about, even under the
full admission of the IRS, as an attempt to get back to the
opposition of a legislator. That's where this came from, and it
has been used now for over 60 years as a bully stick to
intimidate churches and charitable organizations into silence.
Most of us are not aware of the selfish motive behind this
amendment. Most people probably think that this is part of our
Tax Code because it's rooted in the Jeffersonian principle of
separation of church and State, but that's not where it came
from. While it's true that our founders believed that our
country should not establish a national church, they did
establish the First Amendment, which prohibits any law from
curbing the free exercise of religion, which has as its core
the freedom of speech.
So let's agree that even if the Jeffersonian wall exists,
which today is, in my opinion, widely misinterpreted and
misapplied, but even if that wall exists, it works both ways.
When government acts as the gatekeeper of speech, there is no
free speech.
The IRS should not be allowed to violate the Constitution.
And for over 60 years now, they have done just that by being
the gatekeeper, unfairly targeting pastors, churches,
nonprofits, et cetera, with the tax exempt status of those
organizations being used as leverage to get these organizations
not to speak on certain issues.
Prior to being a Member of Congress, I was a pastor. I know
full well the extent to which the intimidation and the cloud of
doubt that is laid over our heads on this issue censors so many
individuals from being engaged. And not only is this whole
thing unconstitutional, but the Johnson amendment itself is
extremely vague, which results in many people and organizations
just censoring themselves right out of any involvement.
And our system of government does not work without
involvement of the people, and yet the Johnson amendment has
such a chilling effect, through fear and intimidation from IRS
threats, even the U.S. Supreme Court acknowledged the harm that
is produced by the vagueness of this law. And they stated in
Virginia v. Hicks that many persons will choose simply to
abstain from protected speech, harming not only themselves, but
society as a whole, and that is indeed what has happened. A
church's mission is undercut, not improved, when the IRS or the
government comes in and begins editing what can and cannot be
said.
So let me be very clear on my final point, Mr. Chairman.
Politicians should not get a free pass when it comes to moral
scrutiny, and that takes place largely as people have the
freedom to express their opinions and to weigh that scrutiny up
to their religious beliefs.
The absence of the Johnson amendment does not mandate nor
certainly license or allow a church to become a political
action committee. The issue plainly is the choice to speak
according to the dictates and convictions of one's heart
without interference, or threat, or punishment, or harassment
from our government.
To speak the conscience of an issue, especially in its
relationship to the exercise of religion, is a cherished belief
and foundation that we share as Americans, and it's simply not
the role of government to police speech.
While this is not a legislative hearing, it is for these
reasons that Majority Whip Steve Scalise and I introduced H.R.
781, the Free Speech Fairness Act, which would provide a carve-
out to the Johnson amendment and allow 501(c)(3) organizations
to engage in political discourse in the normal course of
business with de minimus associated expenses.
And while I greatly appreciate the President's executive
order today directed to the Department of the Treasury and
Justice on the Johnson amendment, I believe it's time that we
rid our Nation of this unconstitutional law by way of
legislative action.
And with that, I look forward to this hearing. Thank you
for being here today. And I yield back.
Mr. Jordan. I thank the gentleman.
I thank Mr. Meadows as well and Mr. Hice and--Congressman
Hice for his leadership on this issue for a number of years and
his involvement with this particular issue.
I now recognize the gentleman from Virginia, Mr. Connolly.
Mr. Connolly. Thank you, Mr. Chairman. I'm sure the title
of this hearing, Examining a Church's Right to Free Speech,
didn't mean to exclude my Hindu colleague next to me or my
Jewish colleague in front of me, Mr. Raskin, I'm sure it was
just an oversight, because we're not just talking about
churches.
I'm a Roman Catholic. I studied for the priesthood too, Mr.
Hice, and my church is protected by this amendment. Your church
wasn't accused of being a foreign entity or having allegiance
to a foreign leader. Mine was. Your church has never been
questioned in America about whether someone was qualified to be
President of the United States. Mine was.
We've suffered the sting of prejudice, religious prejudice.
And, frankly, if we'd been seen as a political agent, that
prejudice would have magnified exponentially. So I have a
different point of view based on my own experience growing up
in Irish Catholic Boston as a kid at 10 years old having to
read a headline in Time Magazine and Newsweek Magazine asking
the question, can a Catholic be President, meaning, our loyalty
was subject to question. And that gentleman who became
President had to go down to Texas and defend himself in front
of a group of protestant ministers. I don't want to return to
that era. If people want to express themselves morally, great.
There's no evidence proving that any houses of worship are
unable to exercise free speech or that any member of a house of
worship, including clergy, aren't able to speak freely on any
social and moral issue they want to address. In fact, we hear a
lot from them.
Certainly Ms. Ancalle, if I'm pronouncing your name, right,
I've been with Tony Perkins on a platform. He didn't seem
inhibited to me. In fact, despite what the misleading title of
today's hearing is meant to suggest, the issue is not one of
free speech.
Under current law, churches and other houses of worship can
speak freely and engage in partisan political activity. That's
under current law. This hearing is not about free speech, it's
about money. Under current law, churches do not pay taxes.
Individuals who donate can claim deductions for their
donations. Churches do not have to reveal publicly who they
are.
If the Johnson amendment were to be repealed, as some are
suggesting, 501(c)(3) tax exempt entities and their
contributors would apparently be allowed to participate in
political campaigns with tax deductible donations. Under their
new status, America would have more than 340,000 new political
action committees.
The new PACs that self-identify those houses of worship
could maintain the anonymity of their donors, and the size of
each donor's contribution would remain a secret. The repeal of
the Johnson amendment would not change the tax deductibility of
donations of houses of worship. This means taxpayers would be
subsidizing partisan political contributions. In other words,
my colleagues are proposing to allow tax deductions now for
those political contributions.
Congress has examined this issue before, and ultimately
decided to rescind the tax deductibility of political
contributions. That was during the Reagan years. Under
Republican proposals, billionaires like Sheldon Adelson or the
Koch brothers could give unlimited contributions to houses of
worship to be directed toward their favorite candidates, and
democratic-leaning donors could do the same for Democrats, and
all those billionaires could claim tax deductions for their
political contributions, what they cannot do now.
Of course, this would also put the ministers and leaders of
houses of worship, I think, in untenable positions, because now
they're not seen as moral men or women of faith, they're seen
as political directors, partisan political directors. And I
think in the long-run, be careful what you ask. That will
undermine religion in America in terms of confidence of the
public.
They would be clergy members and simultaneously treasures
of PACs, they would be faith leaders and political operatives
soliciting and maintaining and distributing millions of dollars
to political campaigns. How would clergy members balance these
competing roles and how would churches, mosques, temples,
synagogues, meeting houses, and cathedrals balance their
members' interests in questions of faith and questions of
campaign donations?
Would they self-select into Republican and Democratic
houses of worship so you know if this denomination is speaking,
it is a Republican, and if this one's speaking, it is a
Democrat? That's what happened in the Civil War, and it took
100 years to heal those wounds.
What we're really discussing is opening the floodgates to
allow the flow of unlimited amounts of tax deductible money
from anonymous donors into political campaigns to houses of
worship and diluting the mission and purpose of those religious
institutions all under the guise of free speech. I believe we
should keep those floodgates firmly closed. According to a
February 2017 Pew Research study, thousands of houses of
worship as well as the public at large agree.
Thank you, Mr. Chairman.
Mr. Jordan. I thank the gentleman.
I want to thank you. And we'll hold the record open for 5
legislative days for members who would like to submit a written
statement.
Let's now turn to our panel of witnesses. Again, I want to
thank you all for being here this morning, and I'm pleased to
welcome Ms. Ancalle.
Ms. Ancalle. Ancalle.
Mr. Jordan. Ancalle. All right. General counsel for the
Family Research Council. Thank you for being with us.
We have Ms. Catherine Engelbrecht for citizens--a citizen
of Cat Spring, Texas.
And we have Ms. Christina Holcomb, legal counsel for the
Alliance Defending Freedom.
And we have Rabbi David Saperstein, former director and
counsel of Religious Action Center.
Welcome to you all.
And pursuant to committee rules, I'd like you to now stand,
raise your right hand. We'd have to swear you in, and then
we'll get right to our testimony.
Do you solemnly swear or affirm that the testimony you're
about to give will be the truth, the whole truth, and nothing
but the truth, so help you God?
Let the record show that each of our witnesses answered in
the affirmative.
And let's go to Ms. Ancalle. You you're familiar how it
works? You get 5 minutes, more or less; prefer a little let,
but that's fine. You take your 5 if you want, and then we'll
move right down the dais there.
WITNESS STATEMENTS
STATEMENT OF MANDI ANCALLE
Ms. Ancalle. Chairman Jordan and members of the
subcommittee, thank you for convening this hearing regarding
the importance of protecting free speech rights of churches and
other nonprofit organizations and their leaders.
Churches and other 501(c)(3) organizations have important
roles in society: helping the sick, feeding the poor,
counseling the downtrodden, ministering to people in need.
Because of their special role in society, they are tax exempt.
For almost 200 years, their work and tax exempt status did
not compromise their ability to speak freely about political
candidates and issues; that is, until 1954, when then Senator
Lyndon Johnson used his political power to weaken organizations
politically opposed to him by conditioning nonprofit
organizations' tax exempt status on their remaining silent on
political candidates.
The Johnson amendment bars 501(c)(3) organizations from,
quote, participating in or intervening in, including the
publishing or distributing of statements, any political
campaign on behalf of or in opposition to any candidate for
public office.
Since its passage, the Johnson amendment has been used to
muzzle and censor pastors and leaders of nonprofit
organizations and to chill the political speech of tax exempt
organizations, religious and nonreligious, on both sides of the
aisle in a variety of ways. No one knows precisely what spoken
or written comments on a candidate will draw an investigation
by the IRS. This vagueness chills free speech.
In 2005, All Saints Episcopal Church in California received
a letter from the IRS, because in 2004, a pastor there
criticized President George Bush and the Iraq war. After 2
years of investigation, in 2007, the IRS closed the case
without revoking the IRS tax exempt letter, but indicated it
thought the pastor's statements violated the law. I should note
that FRC strongly opposed the Bush administration's targeting
of All Saints Episcopal Church.
In addition, the IRS has a history of enforcing the law in
cases only to later refund the penalty paid by the tax exempt
organization. For example, in 2004, an organization called
Catholic Answers posted two E-Letters questioning whether then
presidential candidate John Kerry, also a Catholic, should
present himself for Holy communion, because of his position on
abortion. The IRS investigated the comments and imposed excise
taxes against the organization. However, the IRS later refunded
the tax with interest, finding the organization's political
activity was, quote, not willful and flagrant.
This inconsistency causes confusion for tax exempt
organizations, is a wasteful use of IRS resources, and is why
501(c)(3) nonprofit organizations should be able to engage in
low cost political communications free from the threat of
government prosecutions and harassment.
Pastors have historically been heavily involved in
political matters. 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
in 1776 with the black robe regiment of pastors, who also
served as militarily leaders, and was forged during the
desegregation movement when pastors like Dr. Martin Luther
King, Jr., spoke out forcefully from the pulpit on political
matters.
Now, some pastors and organizational leaders may favor the
Johnson amendment. However, these pastors currently have the
freedom to operate how they see fit. It is pastors who wish to
make political campaign statements who are being muzzled.
Pastors and nonprofit leaders who wish to speak out about
political candidates should be free do so. It is imperative
that the free speech rights of pastors and nonprofit leaders be
restored.
In order to restore the First Amendment free speech rights
of nonprofit organizations, including churches, it is necessary
for Congress to act. February 1 of this year, Senator Lankford
and Representatives Scalise and Hice reintroduced the Free
Speech Fairness Act to roll back the unconstitutional impact of
the Johnson amendment while still preventing churches from
becoming about the money or political action committees.
The Free Speech Fairness Act amends the Johnson amendment
to allow for political campaign speech that is made in the
ordinary course of a 501(c)(3) organization's regular and
customary activities, so long as the activities carry out the
tax exempt organization's purpose and so long as the
organization does not incur more than de minimus incremental
costs or trivial costs for the activity.
Amending the Johnson amendment in this way will allow
501(c)(3) organizations, religious and nonreligious,
conservative and liberal, and regardless of their
organizational mission, breathing room to communicate about
candidates for public office. At the same time, the law will
continue to prevent tax exempt organizations from financing a
candidate or buying political advertisements to get the
candidate elected.
Doing good in society should not engender a muzzle and the
political speech rights of churches and nonprofit leaders
should be restored by rolling back the Johnson amendment
through the Free Speech Fairness Act.
Thank you.
[Prepared statement of Ms. Ancalle follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Jordan. Thank you so much.
Ms. Engelbrecht, you're recognized for your 5 minutes.
STATEMENT OF CATHERINE ENGELBRECHT
Ms. Engelbrecht. Thank you. Good morning, Mr. Chairman and
members of the committee. My name is Catherine Engelbrecht,
citizen of Cat Spring, Texas. I am also the founder of True the
Vote, a national 501(c)(3) organization dedicated to the
advancement of voters' rights and election integrity.
Given that the topic for today's hearing is Examining the
Church's Right to Free Speech, I particularly thank you for the
invitation to participate, because although I am A Christian, I
am not here to speak on behalf of the church. As it happens,
religious organizations and charitable organizations, like True
the Vote, share the same nonprofit class designation, which
means we are held to the same standard in the eyes of the IRS.
So that is what brings me to this chamber, to share the
story of my experiences with the Internal Revenue Service, an
agency that I have found to be so emboldened through the years
of partisan exploitation, that it now presumes itself to be
America's arbiter of free speech.
So in 2010, I filed a 501(c)(3) nonprofit application with
the IRS on behalf of True the Vote. Since that filing, my
private businesses, my nonprofit organization, and I personally
have been subjected to more than 15 instances of audit,
inquiry, or investigation by Federal agencies, including the
IRS, OSHA, the ATF, and the FBI. These inquisitions began only
after my filing of True the Vote's application for tax
exemption, an act that unwittingly put me and my organization
on the radical radar of a political machine that seemed to
place its own survival above the rights of its citizens.
Politicians have long used the IRS to intimidate their
enemies, and an entrenched agency bureaucrat is all too willing
to play the enforcer. So it is now, and so it was in 1954 when
the Johnson amendment became part of the IRS revenue code.
Today, abetted by the Johnson amendment, the IRS can and
does dictate who can speak, what they can say, and to whom they
can say it. Under the current code, if your 501(c)(3)
organization operates to further purposes of religion or
charity or science or education, then this vaguely worded
passage baked into a 46,000-page Federal code lays in wait for
you to muzzle you and to rescind your nonprofit status should
you say something that the government doesn't like.
In my case, the IRS sought to control my organization's
speech from the outset even before they had given us our
501(c)(3) tax designation. In a letter dated February 8, 2012,
one of the many letters we received from the IRS over nearly 3
years of our inextricably protracted application process, the
IRS commanded True the Vote to submit the time, date, location,
and to whom we would be delivering detailed contents of
speeches for all events, all events that we had held since the
inception of the organization and for every future event to be
held over the next 2 years.
They said that this information was necessary in order to
complete their consideration of our application for exemption.
It was necessary, in their view, to examine everything we had
ever said and to control everything we had yet to say. We
declined to comply, and in return, our exemption was withheld
for another year and a half.
Finally, we had no choice but to file a lawsuit against the
IRS in the hopes of bringing an end to the abuse. This battle
has now gone on for 7 very long years, and it continues to this
day. In fact, just 3 weeks ago, my attorney and I went back
into court to face 21 IRS attorneys and staffers, who in legion
continued to argue that they've done nothing wrong.
And that is why the Johnson amendment must be repealed, and
by extension, why the Tax Code must be overhauled, because
bureaucrats must be stripped of their deluded belief that they
are sovereign, because they are not.
An American citizen's right to free speech is immutable.
Tax exempt status cannot be given or taken away in exchange for
that right. That's not how the Constitution should work.
True the Vote's story is a clear example of how the Johnson
amendment purposely was used to silence opposition, but make no
mistake, we are one of many who live with this ever present
threat. It's the reason nonprofits across this country are fast
becoming endangered species. They are fearful of organizing.
People are scared of their government, and that is just what
the autocratic deep state wants. Freedom is anathema to a
government body that operates with impunity outside of our
representative system.
And so my recommendations to you are these. First, repeal
the Johnson amendment, and do not replace it. Any replacement
is only an opportunity to create more confusing loopholes.
Next, amend the tax code to include a policy which clearly
and unquestionably prohibits viewpoint discrimination, and
holds accountable any government employee or contractor who
violates that policy. Make it known that the old ways have come
to an end.
Free speech must be preserved. It's worth testifying to,
it's worth fighting for, because in the end, this is all about
liberty, and it is never wrong to return liberty to the people.
Thank you, Mr. Chairman.
[Prepared statement of Ms. Engelbrecht follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Jordan. Well said. Thank you, Ms. Engelbrecht.
Ms. Holcomb.
We're going to try--they just called votes, but I think we
can get through the next--our next two witnesses and then get
to votes.
STATEMENT OF CHRISTIANA HOLCOMB
Ms. Holcomb. All right. Mr. Chairman----
Mr. Jordan. Hit that button.
Ms. Holcomb. Excuse me. Let's try this again.
Mr. Chairman and members of the committee, for the first
200 years of our Nation's history, America's churches enjoyed
their right to free speech. They guided their people on the
important issues of their day, religious, cultural, and, yes,
even political. They applied scripture to every aspect of life,
including candidates and elections.
But since 1954, that right has been denied to America's
churches. With one last-minute amendment, one voice vote, and
one stroke of the pen, the church's voice was silenced, and
instead, one of the most powerful and unaccountable
bureaucracies in the Federal Government, the IRS, was given the
authority to censor the church.
For over 60 years, the Johnson amendment has caused pastors
to chill their speech. They're fearful. They want to faithfully
preach the whole council of God, but don't want to risk
intrusive IRS audits, crippling financial penalties, and even
their church's tax exempt status, so they stay silent.
Alliance Defending Freedom has been involved in the effort
to free the pulpit from IRS censorship for nearly a decade now.
We've concluded that not only does the Johnson amendment harm
real people, real churches, but it violates the Constitution as
well, and I want to highlight just two of those constitutional
violations.
First, the Johnson amendment is unconstitutionally vague.
No one, including tax experts, legal experts, and certainly not
busy pastors, know with any real certainty where the boundaries
of that law are. Of course, explicit candidate endorsements are
prohibited, but as explained in greater detail in my written
testimony, just about anything beyond that is a mystery.
The IRS guidance on this issue is increasingly vague and
confusing. And to make a bad situation worse, IRS enforcement
has been sporadic and inconsistent. Some churches openly
endorse or oppose political candidates, and the IRS says
nothing. Other churches make a passing reference to how Jesus
might view a particular policy issue, and they trigger IRS
harassment and audits. The Constitution requires that its
citizens be reasonably informed of what the law requires, and
the Johnson amendment fails this standard abysmally.
Second, the Johnson amendment violates free speech.
Churches have a right to speak freely without fearing
government censorship. No one surrenders their constitutional
rights simply by walking through the church doors, and no
church should be forced to surrender its free speech in
exchange for a tax status.
The IRS has been transformed into the speech police,
censoring even what a pastor preaches from the pulpit. For
example, as my colleague mentioned earlier, a pastor at All
Saints Episcopal Church in Pasadena, California, preached a
sermon that included critiques of the President's policies,
based on that minister's deeply held religious convictions. The
IRS pounced and started harassing the church with an
investigation, forcing that church to hire tax attorneys to
defend itself.
But then after nearly 2 years of this ordeal, the IRS
abruptly closed out the file without explanation. It left the
church with no greater clarity on the legal boundaries of the
law than when the whole ordeal started. All of this has
resulted in pervasive chill and self-censorship among America's
churches, in violation of their right to free speech.
In conclusion, the status quo is untenable, and America's
churches are looking to you, their elected Representatives, for
help. We cannot leave this to the judicial branch to resolve.
No court has yet ruled on the constitutionality of the Johnson
amendment's application to a pastor's sermon, likely because
Federal law allows the IRS to control when and with whom and
how it gets into Federal court.
Since 2008, Alliance Defending Freedom has encouraged a
legal challenge to the Johnson amendment through our Pulpit
Initiative, but the IRS has refused. So it's time for Congress
to act.
The Free Speech Fairness Act is the best solution that we
at Alliance Defending Freedom have seen to these constitutional
problems. The bill creates a much needed relief valve for free
speech, it allows churches to once again speak as they would in
the ordinary course of their ministries without fearing IRS
retribution, and such a legislative fix would allow America's
churches to once more guide their congregations, as the
Constitution permits and as their religious beliefs require.
Thank you.
[Prepared statement of Ms. Holcomb follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Jordan. Thank you.
Rabbi, fire away.
STATEMENT OF RABBI DAVID SAPERSTEIN
Rabbi Saperstein. Mr. Chairman, Ranking Member, and members
of the committee, really I'm honored to be here with you today.
And I thank you all for your support of my work as serving
as the U.S. Ambassador for International Religious Freedom. I
do want to single out Mr. Meadows who is extraordinary in the
work that he has done in that field.
Let me just lift out a few of the key concerns here, and
the concerns for the houses of worship, for the clergy. First,
how divisive this will be to bring into our houses of worship
the notion of endorsing candidates and dividing those houses of
worship along political lines. We have enough divisions of the
theology, music, sermons, et cetera, without adding this into
the mix here.
Where do you draw the line? What is a pastor to do if a
congregant who is a major donor says, I'll give you a gift this
year, but only if you endorse such a candidate? What do you do
if the pastor endorses one candidate who he thinks is worthy,
and then someone else wants someone else, or a member of the
congregation asks? What if two members of their congregations
are running against each other, and this is a pastor having
responsibilities to both sides? What do you do in these
situations? It takes us down a very divisive and dangerous path
in terms of the well-being of congregations, which is why
there's so many polls that show overwhelmingly clergy don't
want this.
National Association of Evangelicals 2 months ago in its
evangelical leaders poll, 90 percent don't want this. The
LifeWay Christian polling entity polls, 90 percent of clergy
don't want this. You can go down the polling data. 66 percent
of Trump voters don't want it, 62 percent of identified
Republicans say this would be bad. That shouldn't be
determinative, but it should--you should, I would hope, ask,
why, and how do we deal with what their concerns are.
Secondly, do we agree on the description there? I don't
know where the line is between the argument that right now
pastors have and clergy have, of all kind, free speech and
churches have free speech in the sense they can talk about
issues, they can speak out on moral issues on the day, on
political issues, they can talk about issues that candidates
raise, they can talk about anything that they want to do.
They can hold candidate forums, they can get people to the
polls, they can do all kinds of activities as individuals.
Clergy can do what everyone else can do, endorse, oppose a
candidate, run for office, many clergy serve in office while
they're serving their churches. I understand what this debate
is over, but it sound to me it is over a very limited area
where it's being described as being a pervasive area. Do we
agree on that limit? And if so, then it's a respectful
difference between those who say this is speech and those who
say you have that speech. What isn't involved is the right of
people to do that electoral work with subsidies from the
government.
The Supreme Court has held that tax exemptions and
deductible gifts constitute subsidies by the government. That
is the law right now. And it has upheld that such restrictions
apply to what we're talking about today.
If that is the debate to us, this is about subsidies and
whether or not people have a right to have subsidies. Dr. King
served his entire career with the Johnson amendment in effect.
He was never restrained in what he could do, he never
complained about infringements of his religious freedom because
of the Johnson amendment, and I don't know many clergy who do
in that regard, other than the question whether they can
endorse candidates with government subsidies paying for it.
Third, this idea of whether or not, if you do away with the
Johnson amendment altogether, whether nonprofits and churches
become slush funds. Do we all agree that these would be
campaign contributions that could be given through a house of
worship getting a tax deduction with no reporting to the
government, or are we going to take away some of the exemptions
that houses of worship now have and force them to report the
contributions of their members?
Finally, there are these efforts to restrict this to just
speech, but what kind of speech are we talking about? Just
sermons? Is de minimus--Mr. Hice, is de minimus one sermon, is
it one sentence in every sermon, is it 50 sermons, is it 50
bulletin articles, is it 50 emails going out? That doesn't cost
additional money to do it anyway. De minimus will be no clearer
than the current system is in that regard.
The 501(c)(3) partisan restrictions are not just bad--are
protective of our religious communities, and changing that is
not just bad legal policy, it is bad religious policy as well.
And I urge you to maintain the Johnson amendment that
served so well to protect our nonprofits and houses of worship
from being turned into campaign slush funds, and dividing their
members along partisan political lines.
[Prepared statement of Rabbi Saperstein follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Jordan. Thank you, Rabbi.
The committee will stand in recess 30 minutes more or less.
And you can--we've got coffee and stuff, you can--you can--but
we'll be back in 30-minutes.
[Recess.]
Mr. Jordan. The committee will reconvene.
Rabbi, we believe in free speech so much we were waiting
for you to speak to the press. That's our commitment to the
First Amendment.
So we're going to start with the gentleman from Georgia,
Congressman Hice.
Mr. Hice. Thank you, Mr. Chairman.
Ms. Holcomb, your organization, an outstanding group,
actually put forth the Pulpit Initiative and Pulpit Freedom
Sunday. As you know, I was one of the original pastors that
were a part of that group in 2008. Can you briefly explain to
this committee what that event is and what's its purpose?
Ms. Holcomb. Absolutely. Mr. Chairman, members of the
committee, thank you.
The Pulpit Initiative was designed to bring this issue to a
head and to provide a legal challenge to the Johnson Amendment
because, as you know, and I'm sure you're well aware, Federal
law prohibits us from affirmatively suing the IRS outright to
deal with this issue.
So we started what's called Pulpit Freedom Sunday where we
encourage pastors across the Nation to exercise their
constitutional rights to free speech and the free exercise of
religion. And many of them endorse or oppose candidates on that
day, and a number of them provide courtesy copies of their
sermons to the IRS and send them in so that they're fully aware
of what's going on.
We've encouraged, as I mentioned, a legal challenge,
wanting to go head-to-head with the IRS on this issue and allow
a court to rule on the Johnson Amendment's constitutionality or
a lack thereof, in our opinion, but the IRS has been unwilling
to take the bait.
It did harass and intimidate one of our pastors for
approximately 11 months of an audit, and we defended him
throughout that process. But, otherwise, it has been unwilling
to allow a Federal court to address this issue, which is why
we're now recommending that Congress go ahead and fix that
which was enacted over 60-plus years ago.
Mr. Hice. So why do you believe the IRS did not respond?
Ms. Holcomb. It's all speculation. I think it could be a
number of different things. But one thing is, the IRS may
recognize that it's on tenuous constitutional grounds. It
probably does not want to have a Federal judge actually examine
the constitutional violations, both those that I've mentioned
in my written testimony, but those that I did not. In addition
to vagueness and free speech, the Johnson Amendment is
constitutionally questionable in the areas of free exercise in
the Establishment Clause, potentially even Federal RFRA.
So I think that would be one primary reason why the IRS
might be reluctant to allow a court to look into this.
Mr. Hice. So you believe it is an unconstitutional code?
Ms. Holcomb. Absolutely, it's an unconstitutional code,
and, frankly, has no legitimate basis in law either, having
been enacted as a political ploy.
Mr. Hice. Okay. Ms. Ancalle, let me ask you about the
vagueness aspect of the Johnson Amendment. How is that
complicating the interpretation?
Ms. Ancalle. That's a great question. I'm sure you're very
aware as a pastor of the fact that many activist organizations
actually use that vagueness and the lack of consistency with
how the IRS has enforced this statute to chill the speech of
pastors, to threaten them into submission, essentially scaring
pastors out of making political statements generally, not just
about political candidates, but about, as Mr. Connolly
mentioned, moral issues and Biblical issues that really affects
the life of the church and the life of individual believers.
Mr. Hice. What about the accusation that somehow this, if
it's repealed or changed in any way, the Johnson Amendment,
that it would make churches become political action committees
where dirty money could be laundered?
Ms. Ancalle. Well, the Free Speech Fairness Act is specific
in that it doesn't allow more than de minimis incremental
costs. So the de minimis factor is not related to the length of
the statement, is not related to how many times the statement
is made, but it is related to the cost of the statement. So the
whole purpose of that provision within the Free Speech Fairness
Act, as I understand it, is to eliminate the ability for
churches to become political action committees.
Mr. Hice. How would you respond to that, Ms. Holcomb?
Ms. Holcomb. I would absolutely agree. With the Free Speech
Fairness Act, it is extremely simple. All it does is create a
release valve for free speech so that 501(c)(3) organizations,
particularly churches, which is my primary concern in this
instance, would be allowed to once again fully exercise their
First Amendment freedom to speak freely without having the IRS
burst through their church doors and censor their sermons.
Mr. Hice. So it's not legal for churches to give candidates
or is it?
Ms. Holcomb. No, no.
Mr. Hice. Give money to candidates.
Ms. Holcomb. Absolutely not.
Mr. Hice. Or would that change?
Ms. Holcomb. It would not change. The Free Speech Fairness
Act does not in any way eviscerate current campaign finance
laws, so those concerns really are not applicable in this
context.
Mr. Hice. And, Ms. Engelbrecht, let me ask you, are you
aware that the veterans organizations are also 501(c)(3)
organizations that are both tax exempt and receive charitable
donations?
Ms. Engelbrecht. There's all kinds of organizations that
are (c)(3)s beyond just churches, and that's one of the reasons
this is such a critical debate.
Mr. Hice. Okay. So my question here has to come with
fairness of law. Is there a discrepancy in the way that
different 501(c)(3)s are treated?
Ms. Engelbrecht. I would hope not. All I can say is in our
experience the Johnson Amendment seemed to be a gateway to a
type of abuse that I don't think any American citizen should
have to endure, including visits from the Domestic Terrorism
Unit of the FBI, the repeated audits by the IRS, OSHA showing
up, Bureau of Alcohol, Tobacco and Firearms showing up twice.
Mr. Hice. Let me ask Ms. Ancalle or this whole committee,
there seems to me to be a broad discrepancy in the way
501(c)(3)s are treated here and there's direct discrimination?
Ms. Holcomb. I think that's exactly right, if I may jump
in. You've got some 26 different organizations that are exempt
under the IRS code. Only (c)(3)s have this explicit speech
restriction. And, frankly, it's unfair, and that's what the
Free Speech Fairness Act is designed to do, is restore that
fairness for all.
Mr. Hice. Thank you, Mr. Chairman.
Mr. Jordan. Thank the gentleman.
I now recognize the ranking member for his 5 minutes.
Mr. Krishnamoorthi. Thank you, Mr. Chair.
Despite the title of this hearing, the Tax Code does not
constrain the freedom of speech of churches and other houses of
worship. In fact, the majority has studiously avoided any
extensive discussion of the real purpose of taking away the
Johnson Amendment, which is to allow money, political money, to
enter the system through houses of worship.
Rabbi Saperstein, churches and members of the clergy are
free to speak out on any social issue, aren't they?
Rabbi Saperstein. They are indeed.
Mr. Krishnamoorthi. And acting in their personal
capacities, members of the clergy, like all members of houses
of worship, can legally endorse or oppose political candidates.
Isn't that true?
Rabbi Saperstein. They can. They do. They can run for
office. They can do anything politically that anyone else can
do.
Mr. Krishnamoorthi. Certainly. In fact, acting in their
personal capacities, members of the clergy, like all members of
all houses of worship, can even serve as the treasurers of
political campaigns, or PACs, can't they?
Rabbi Saperstein. Yes.
Mr. Krishnamoorthi. Now, let's be clear, the only thing
that the current tax laws restrain is the use of churches to
collect and funnel tax-deductible contributions from anonymous
donors into political campaigns.
Folks, churches and houses of worship have a special place
in the Tax Code. They don't have to disclose their donors, and
those donors can take deductions for their contributions to
houses of worship. That is the special place that houses of
worship have in our Tax Code.
We have a rich history of churches and other houses of
worship engaging in pressing social and moral issues. For
example, Tony Perkins with the Family Research Council has
eloquently written, and I quote: ``Dr. Martin Luther King, Jr.,
spoke out forcefully from the pulpit on political matters that
required change, and we are all glad he did so. It benefits all
of us to have such change agents speaking freely from the
pulpit. Since the birth of our Nation, pastors and churches
have been at the forefront of shaping public debate and our
choice of public servants. What would America look like today
had King or Reverend Lyman Beecher, a leading abolitionist,
been muzzled by the IRS?''
Of course, the laws that the Family Research Council seeks
to alter have been part of the Tax Code since 1954, before even
the Montgomery bus boycott which Dr. King helped to lead.
Rabbi Saperstein, did tax laws prevent Dr. King from
speaking out and standing up during the civil rights movement?
Rabbi Saperstein. It certainly did not. And, as I said, the
Johnson Amendment was in effect the entire time.
Mr. Krishnamoorthi. And you're absolutely correct about
that. Our tax laws do not restrain the freedom of speech.
Perhaps that is why 99 faith and denominational groups wrote a
letter to Congress opposing efforts to allow dark money to flow
into American political campaigns through churches and
charities.
Now, let's be very clear what this hearing is about. It's
about money, money, money. That is what this hearing is about.
It is not about the restraint of free speech.
I ask unanimous consent to insert into the record the
statements from the following organizations. Statement of Tim
Delaney on behalf of the National Council of Nonprofits.
Statement of Amanda Tyler on behalf of the Baptist Joint
Committee for Religious Liberty. Statement of Maggie Garrett on
behalf of Americans United for Separation of Church and State.
And, finally, the statement of Michael De Dora on behalf of the
Center for Inquiry.
Mr. Jordan. Without objection, so ordered.
Mr. Krishnamoorthi. Now, folks, we all must remember the
separation of church and state is foundational to our
democracy. And the reason why houses of worship and churches
and religious institutions have a special tax exemption under
the code is because we want to encourage folks to be able to
donate to their churches and houses of worship and nonprofits
to do good for our society, and to do it in a nonpartisan,
nonpolitical way.
People who are affiliated with these churches and houses of
worship and nonprofits in their personal capacities can do
whatever the heck they want politically. But they cannot use
their resources, which have been derived in a tax-exempt way,
from pursuing partisan political purposes. And that is
something that's sacrosanct in our Tax Code, and that's what
the vast majority of Americans believe in.
Thank you. And I yield back.
Mr. Jordan. I thank the gentleman.
I now recognize another pastor. The gentleman from North
Carolina, Mr. Walker, is recognized.
Mr. Walker. Thank you, Mr. Chairman. It's a privilege to be
with you guys today.
Thank you, panel, for coming out as well.
I want to take some time to get to some questions, but just
some of the comments that I hear I feel like that need to be
addressed.
We stand for synagogues, temples, churches. So the misnomer
that we heard earlier, this is just about churches, is
certainly offensive to me. My friend, Rabbi Fred Guttman in
Greensboro, we don't agree many times politically, but he's one
of my dearest friends. Rabbi Andy Koren was in my office
yesterday.
But I also stand for my friends Dr. Mohammed Farooqui,
Shahzad Akbar, and those great people, not just because they're
friends of mine, but because they have every right to speak
according to their religious beliefs as anybody else.
Another comment that was just recently mentioned was
talking about a pastor as long as he is, I believe, operating
in his personal capacity. And I thought about, once again, this
is a place where what laymen, what pastors, what the American
public, the rules they have to play by are so often different
than what Congress gets to play by.
In this capacity, if we were to endorse someone, it
wouldn't be in our private. We would probably say, in any kind
of billing, it would say, Congressman so-and-so endorses so-
and-so.
And I just think it's kind of humorous that we put
limitations as far as a pastor on what he can do if it's under
the guise of a church. If so-and-so is this pastor, make sure
he is saying that's in his personal capacity as opposed to
representing a certain church body.
And, Rabbi Saperstein, you had talked about a little bit
earlier and talked about two people running in the same church,
what would the pastor do? I had two thoughts on that. One is
local churches should have the autonomy to be able to make
whatever decisions they believe as long as it's within the
confines of the law.
And I will tell you as a former pastor, you talked about
that being such a crises. And as you've probably experienced as
well, crises are when you're in the room with somebody
breathing their last breath and struggling to give words to a
family. Crises is when you have a home falling apart and you're
looking for guidance to be able to put that back together. I
trust pastors to make the decisions well when it comes to
politically in this capacity.
So let me ask a couple of questions. And I want to start
with--and I was out--Ms. Ancalle? Is that----
Ms. Ancalle. Ancalle.
Mr. Walker. Ancalle. Okay. Thank you for the pronunciation.
The Federal Tax Code in regards to a tax-exempt charitable
organization, among other things, must not participate in or
intervene in--which is including publishing or distributing of
statements--any political campaign on behalf or in opposition
to any candidate for public office.
``Indirectly'' is the key word I want to focus on there.
What does it mean to indirectly intervene in a campaign? And if
you, a legal expert, can't tell me, how in the world are
pastors supposed to know what kind of conduct is legal and what
isn't?
Ms. Ancalle. That's a fabulous point, and that's exactly
the point that I believe and the ADF is making today, is that
the vagueness of these rules and regulations, the secrecy
behind some of the regulations that the IRS uses to investigate
churches and other nonprofit organizations is just baffling.
And it's very difficult for attorneys, and certainly lay
people, to understand.
Mr. Walker. I don't think this fear is unfounded, whether
it's your Hindu background, Muslim background. But I do find it
very interesting that 81 percent of the American public--81
percent of evangelicals--voted for President Trump. This fear
is real, it exists out there, that there are some restrictions
that are trending this direction.
Another question I would have for you, you used the word
``chilling effect'' in your testimony. Can you describe how the
Johnson Amendment has a chilling effect on speech?
Ms. Ancalle. Certainly. Precisely because of the vagueness
and the inconsistency with how the IRS applies the law, with
whether the IRS is going to actually continue to apply the law
in the same ways when the IRS imposes a penalty and then
actually rescinds that penalty or refunds that penalty with
interest, it causes a lot of confusion for pastors and leaders
in nonprofit organizations, which is unfortunate. But it is
what causes a chilling effect. Because pastors are uncertain of
how the Johnson Amendment will be applied to them, they, in
fact, do not make political statements, not just about
candidates, but about issues that do affect the church.
Mr. Walker. I just had a meeting recently with about 50, 55
pastors. We do these breakfasts about once a month, and we
invite all of our friends from different places, synagogues,
temples, whatever it might be. And one of the current concerns
they continue to bring up is this mass confusion as far as what
they can and cannot say. It's very unclear.
Ms. Holcomb, some believe an amended Johnson Amendment
would politicize the 501(c)(3) organizations, or in this case
synagogues, temples, or churches. Would nonprofit organizations
be forced to stand in support or opposition to any political
candidate?
Ms. Holcomb. Mr. Chairman, members of the committee, thank
you for that question.
No, absolutely not. If you don't want to speak about these
issues, you certainly do not have to. But right now we have the
heavy hand of government coming down on one side of this
equation saying that you may not. That's fundamentally a
theological decision and should be left to the churches.
Mr. Walker. Thank you, Mr. Chairman. Yield back.
Mr. Jordan. Thank the gentleman.
I now recognize the gentlelady from the District of
Columbia for her 5 minutes.
Ms. Norton. Thank you, Mr. Chairman.
You know, if the heavy arm of government were coming down
on ministers and rabbis, they're a very powerful institution,
they would be here in our faces. And we haven't seen them. And
I can't imagine why we now want to take the only part of
American life that is not polarized and put it right into the
thick of the ugliest part of our life.
The religious institutions are the only institutions I know
not asking for taxes or a tax break. So now you want them up
here, essentially, doing the same thing.
It's interesting that none of the minority witnesses
directly lead a church or a synagogue. But what the majority
witnesses want to do is to spread Citizens United to houses of
worship. It's not about free speech. It's about political
money.
There's been great wisdom on the part of the Framers and
the Johnson Amendment in protecting our houses of worship, our
political institutions, from the corrosive effects of political
money. Of course, the churches and the synagogues and religious
institutions have spoken for themselves asking for the money.
So I don't know who in the world you think you represent.
There is a repeal bill here offered by Congressman Hice and
Congressman Scalise. I'd like you, Rabbi Saperstein, to listen
to how they would frame it as far as churches, religious
institutions, and charities. Remember that, charities. It's a
wide-open word.
Partisan political activity would be allowed if it is made
in the ordinary course of an organization's regular and
customary activities--that's the biggest hole I've seen anybody
has ever tried to write into law, if you try to figure what a
minister and a rabbi do every day--that results in the
organization incurring not more than de minimis incremental
expenses.
Rabbi Saperstein, does that language, does that approach
taken in this pending legislation allay the concerns you raised
in your testimony?
Rabbi Saperstein. Indulge me to make two very brief
comments before responding.
First, in the Tim Delaney letter that was put into the
record here earlier, it represents 4,500 nonprofits. I checked
briefly. It looks like there are nonprofits from each of the
districts of the people who are here today on this.
Secondly, I just had--Mr. Walker talked about Rabbi Koren,
because we brought 800 leaders in to advocate for policies that
they were concerned about. But, at the same time, totally
coincidentally, I see a group of Jewish women behind me who
with people, I'm sure, in each of your districts, wanted to get
involved in electoral politics and created a Jewish woman's
PAC--that's a national political action committee--rather than
doing it through their synagogues.
So what we're not sure of is what de minimis means here.
The idea that endorsement, you're allowed to endorse someone,
you can do it from the pulpit, you just can't do it with tax-
deductible money and tax-exempt money. And that's the money
that pays that salary of the person making the statement that
underwrites the cost of the church----
Ms. Norton. Rabbi Saperstein, you and I know that some of
the most political figures we know are ministers and rabbis,
and they don't feel that they can't speak out. Often they are
leaders, and, indeed, the ones that make us understand what we
have to do up here. That's why you don't see them sitting as a
whole crowd with people of collar, with collars on, saying,
please change the law.
How about the de minimis standard, do you think the
language I quoted to you before would start us down a slippery
slope?
Rabbi Saperstein. I have no idea. I posed that question to
Mr. Hice before. I don't know what it means. It would be as
vague as the current standards and will not help at all, and I
think it will open up a Pandora's box that we will deeply
regret.
And, Representative Norton, my colleagues can correct me if
I'm wrong, I don't know a single national, major national
denomination that is calling for the repeal of the Johnson
Amendment. Overwhelmingly, the polls show 90 percent of clergy
do not want this touched, that they feel it protects their
religious freedom.
Ms. Norton. That's why I don't know who the minority--
majority witnesses could possibly represent.
Thank you very much, Mr. Chairman.
Mr. Jordan. I thank the gentlelady for her questions.
We'll now turn to the gentleman from Wisconsin, Mr.
Grothman.
Mr. Grothman. Just a general question. I have heard
ministers say that they're--or people in churches say that
ministers are not speaking out because they're afraid of the
Johnson Amendment on a variety of issues that they're afraid to
talk about.
Deep down inside, do you think the biggest problem we have,
as far as ministers not speaking out on certain issues, is it
the Johnson Amendment or is it cowardice on the part of the
ministers?
It's a big issue. It's a huge issue.
Ms. Ancalle. Yeah. I'll just mention that I know that every
election cycle activist organizations send letters to
churches--my church back in Georgia received these letters
every year--threatening to turn them in to the IRS. And
especially the smaller churches, this is a significant threat.
They don't have tax experts and tax lawyers in their churches
that can step up to the plate and provide defenses and guidance
through audit and 2-year investigations.
And so I do think that it's a significant threat, the
Johnson Amendment is a significant threat to pastors.
Mr. Grothman. What's the bigger problem? Is it the Johnson
Amendment or when ministers tell me they can't speak out on
abortion or can't speak out on gay issues or can't speak out on
premarital sex, is the bigger problem the Johnson Amendment or
is it cowardice on the part of the clergy?
Ms. Ancalle. Well, I'm actually also very glad that you
asked that question because, in fact, Family Research Council
has a significant church ministries team. And there are a
number of pastors from those churches from around the country
that are heavily engaged in the political process, both on the
local and the national level. And I'm here representing, you
know, some of those churches that are a part of our church
ministries team.
And so I do think that pastors, many pastors, would like to
be more engaged and are just not sure how they can do that with
the Johnson Amendment intact.
Mr. Grothman. Ms. Engelbrecht, Ms. Holcomb, do you have any
comments on that?
Ms. Holcomb. Yes. Mr. Chairman, members of the committee, I
appreciate the question.
I think it's a false dichotomy. It's kind of a question of
which comes first. Alliance Defending Freedom receives hundreds
of calls every year from pastors across the country who want to
know what the legal boundaries of the Johnson Amendment are and
what they can and cannot legally do.
Again, they're law-abiding citizens. They don't want to
risk the IRS intrusion into their pulpits and ministries. And
so they're trying to be very careful and cautious about how
they go about leading their congregations and navigating these
moral issues.
And so it's so important that we deal with the issue of the
Johnson Amendment so the pastors again feel at liberty to, as
they did for the first 200 years of American history, guide
their people in all aspects of life.
Rabbi Saperstein. The other option would be for all of us
to simply tell them what they're entitled to do, entitled to
speak out on all of these things, so long as they don't endorse
candidates and use money for partisan political purposes.
Pretty simple concept here. And all of those letters you get,
we could just tell them what they're allowed to do and empower
them to do it.
Mr. Grothman. Yeah. Well, this is a fine bill. I'm not sure
it's the biggest problem we face in the clergy today.
But, Ms. Engelbrecht, I'll give you a question.
Ms. Engelbrecht. Well--go ahead.
Mr. Grothman. Go ahead. You can respond to my last
question.
Ms. Engelbrecht. You know, I am a leader of a 501(c)(3)
organization. So this is not academic to me. This is not a sort
of empirical study of what might happen. It happened.
And I'm eternally glad, as our country should be, that it
didn't happen when civil rights greats like Martin Luther King
spoke out underneath the Johnson Amendment, but it doesn't mean
that it couldn't. And I think we have just come to a very ugly
chapter in this country when we saw the IRS take full liberty--
liberty, that's a funny use of that word--to abuse the rights
citizens.
So there's no half measure of freedom. There's no half
measure of free speech. You either have it or you don't. And I
think that's the fundamental question. I do realize that this
is a difficult situation to sort through, but I don't think you
can start at a place that delegitimizes the Constitution.
Mr. Grothman. Okay. Either you're avoiding or didn't get
what I was trying to get at. But, okay.
I'll give you another question. Other than True the Vote,
are you aware of any other organizations that are silenced or
harmed by the Johnson Amendment?
Ms. Engelbrecht. Absolutely.
Mr. Grothman. Could you list them?
Ms. Engelbrecht. Well, sadly, I don't have the list with
me. But I would say that America got a first glimpse when the
BOLO list, be-on-the-lookout list came out in the USA Today, I
believe it was, that listed over 200 groups that had been
singled out for investigation by the IRS.
Mr. Grothman. Okay. Thank you very much.
Mr. Jordan. I thank the gentleman.
Rabbi, do you--and let's just talk in the abstract first--
do you think that government can, in fact, have a chilling
effect on individual liberties?
Rabbi Saperstein. I do.
Mr. Jordan. And then let's get specific. Do you think the
government can have a chilling effect on people's First
Amendment free speech liberties?
Rabbi Saperstein. I do.
Mr. Jordan. Yeah. And part of that is driven by what we've
heard from the other witnesses, the vagueness of the Johnson
Amendment. Do you agree with that?
Vagueness of the Johnson Amendment, every election year
countless number of churches, typically evangelical churches,
get letters from the left--is that right, Ms. Holcomb?
Ms. Holcomb. That is correct.
Mr. Jordan. Letters from left-wing organizations say: Hey,
hey, hey, be careful, big brother is watching.
Rabbi Saperstein. Does that have to do with the ambiguity
or does that have to do with they're endorsing candidates?
Mr. Jordan. No, it has to do with the fact organizations
are sending them a letter and the vagueness of this law.
Rabbi Saperstein. Saying in the past you've endorsed
candidates, and you shouldn't do that. The Johnson Amendment
and the law is clear, don't do it.
Mr. Jordan. Saying whether it's true or not. My colleague
from the District of Colombia mentioned just a few minutes ago,
the heavy arm of government. If anyone knows about the heavy
arm of government, my guess is it's Ms. Engelbrecht, right?
If I get this right, looking at your fact pattern, the two
organizations you were involved in forming, True the Vote and
King Street Patriots, back in 2010 you applied for your tax-
exempt status, right?
Ms. Engelbrecht. Correct.
Mr. Jordan. And after 2010, for the next 3 years, if I
counted this up right, you got six phone calls or visits by the
FBI.
Ms. Engelbrecht. Correct.
Mr. Jordan. Twice you were visited by the Bureau of
Alcohol, Tobacco and Firearms. OSHA stopped by to say hello.
The Texas EPA stopped by to say hello. The ranking member of
this full committee sent you letters, went on national
television, and criticized you and your organization. And, oh,
just to add insult to injury, eight times the IRS contacted you
and audited you both personally and in your business. Is that
accurate?
Ms. Engelbrecht. That's accurate. And I would add to that,
that all the while our 501(c)(3) application was in play. At
any point the IRS could have said, you know, thumbs up or
thumbs down, you either meet the criteria or you don't. But
they used it for what over time began to feel like opposition
research.
Mr. Jordan. Did you feel a little nervous? Did that chill
some of the activities that True the Vote and King Street
Patriots might want to get involved in?
Ms. Engelbrecht. Absolutely.
Mr. Jordan. Would you agree with that, Rabbi, that that
would probably have a chilling effect on any organization, had
there been eight contacts from the IRS, six from the FBI?
Again, finding nothing wrong, she didn't do anything wrong. She
was just waiting on a pending application.
Rabbi Saperstein. The application of any of these rules
should never depend on the content of what is happening here.
That is a principle I hope we all agree on.
Mr. Jordan. So let me ask you a question, Ms. Holcomb,
because--well, let me get back to Ms. Engelbrecht.
Did the IRS ask for anything specific? Did they ask, like,
what you're doing in these meetings, the content of what you're
doing? Did they do that?
Ms. Engelbrecht. Yes, sir. They asked for copies of every
tweet I'd ever tweeted, every Facebook posting I'd ever posted,
everywhere I'd spoken since the inception of the organization
and to whom, and what I said. And they asked for any advanced
scheduling for the next 2 years. There was no doubt in my mind
that they were looking to censor my speech.
Mr. Jordan. So if that's not the heavy arm of government
chilling First Amendment liberties, I don't know what is. I
don't know what is.
Ms. Holcomb, have pastors ever had their--had the
government ask for the content of their sermons? Has that ever
happened?
Ms. Holcomb. Thank you, Mr. Chairman.
Yes, unfortunately, it has. One extremely notorious----
Mr. Jordan. And it happened in----
Ms. Holcomb. Houston.
Mr. Jordan. --it happened to happen in Ms. Engelbrecht's
State, right?
Ms. Holcomb. It did.
Mr. Jordan. Not too far from where she lives. Imagine that.
Ms. Holcomb. That's exactly right. The mayor of Houston
subpoenaed the sermons of five local pastors all because they
had simply spoken out and preached about their Biblical views
on human sexuality
Mr. Jordan. They hadn't endorsed a candidate, had they?
Ms. Holcomb. They had not endorsed a candidate whatsoever.
Mr. Jordan. They hadn't opposed a candidate?
Ms. Holcomb. They had not.
Mr. Jordan. It was about an issue, wasn't it?
Ms. Holcomb. It was about an issue.
Mr. Jordan. Issue central to their tenets, their beliefs?
Ms. Holcomb. That's exactly right.
Mr. Jordan. Think that chills speech, Rabbi?
Rabbi Saperstein. I don't know the circumstances, but my
answer is going to be yes. A mayor shouldn't be asking for the
content of this. It may be such, but just because----
Mr. Jordan. On a central issue, a social issue that is
central to the beliefs of those individuals at that church,
that the mayor, I mean, the heavy arm of government, the mayor
of a city of several million people, Houston, if I remember
right, Ms. Holcomb, asked for the content. You just said
earlier we shouldn't be doing that.
So this is what happens, and this is why Mr. Hice's
legislation is so important, this issue is so important.
Rabbi Saperstein. But the question is, are there times,
legitimately, that speech can be regulated here? And you quoted
Virginia v. Hicks before, did I hear you correctly, Mr. Hice?
Mr. Hice. That I did what?
Rabbi Saperstein. You quoted Virginia v. Hicks, the Supreme
Court case.
Mr. Hice. Yes.
Rabbi Saperstein. So in that case Justice Scalia said there
comes a point at which the chilling effect of an overbroad law,
significant though it might be, cannot justify prohibiting all
enforcement of the law.
And I think that this law works in the proper way, the
Johnson Amendment----
Mr. Jordan. You may think but----
Rabbi Saperstein. --to say you just can't have the speech
with government subsidies.
Mr. Jordan. I respectfully disagree, and so do a lot of
other Americans. That's why we're having this hearing. And what
we know is it did happen. It happened. The heavy arm of
government asking for content for sermons that pastors preached
regarding an issue, not endorsing candidates.
Rabbi Saperstein. You and I agree on this.
Mr. Jordan. And the slippery slope that my colleague also
talked about is pretty darn slippery when you view it in the
context that Ms. Engelbrecht knows firsthand.
When you view it in the context of the very organization
charged with administering this amendment, this law, the
Johnson Amendment, was caught, systematically, for a sustained
period of time, in Ms. Engelbrecht's situation 7 years,
harassing groups, keeping them in limbo, chilling their
activities, because they didn't like their political beliefs.
Unbelievable that happened in the United States. Unbelievable.
And we also know what took place in Houston where the
government was saying: We want pastors' sermons. You've got to
be kidding me. And to say that we don't need this, and to say,
oh, it's about campaign finance. It's not. It's about no law
abridging freedom of speech, the plain language of the First
Amendment.
Rabbi Saperstein. I'm sorry. And endorsing candidates will
help that situation?
Mr. Jordan. I didn't say that. I'm just--I'm talking about
the example here. But, frankly, that's free speech too. But
what I'm talking about--so I'm talking what took place in Texas
and what took place in Houston.
Rabbi Saperstein. They just don't have the right to have a
government subsidy for that speech. That's the only
restriction.
Mr. Jordan. Ms. Ancalle, you are just dying to get in and
then I'll have to move on to our next----
Ms. Ancalle. I'm very excited to chime in on this topic, if
you don't mind, because a church does not receive government
subsidies. A church is tax exempt. And that's because churches
and these charities, these nonprofit organizations are giving
out more than $1 trillion, a recent study said, in goods and
services. So the idea that churches are subsidized by the
government is inaccurate at best.
Rabbi Saperstein. But you know as well as I do that in the
legal case that Justice Rehnquist wrote the opinion that--I
quoted Justice Scalia before--another liberal judge, Justice
Rehnquist, held that that is, these are subsidies. And that is
the law of the land right now, right?
Mr. Jordan. I don't think many churches think they're
getting subsidies from their parishioners. I think they're
getting----
Ms. Ancalle. And I believe that if a church did receive
government subsidies----
Mr. Jordan. --a tithe from their parishioners because they
believe in the work that they are doing in that church, and the
ministry they are receiving, and the ministry they are giving
to the community, and to the families who worship there. That's
what it is. It's not a subsidy from the government, for
goodness sake.
With that, I'll recognize my good friend, the ranking
member from the great State of Virginia.
Mr. Connolly. Thank you.
Mr. Jordan. Knows something about the First Amendment, that
founding colony and all that.
Mr. Connolly. Right.
Mr. Jordan. God bless you, Brother. You're up.
Mr. Connolly. I thank you. And we even know something about
religious freedom, because I also come from Massachusetts where
John Adams enshrined that concept into the first Constitution
of Massachusetts, which continues to this day.
And, of course, Mr. Jefferson and Mr. Madison, both of whom
came from my State of Virginia, believed in a pretty strong
firewall between church and state. Mr. Madison, for example,
took on a lot of unpopular religious causes to fight for the
religious freedom of Anabaptists, because the State religion as
a colony was the Church of England. And it was not a popular
cause, although, it helped him beat James Monroe for the first
congressional election--but that's a different story--because
the other Anabaptists came out in droves to support him.
So we have a little bit of history in the Commonwealth of
Virginia. I remember going to Williamsburg for a mock trial
from an original verbatim and, again, was surprised to learn,
Rabbi Saperstein, that Catholics were not welcome on the jury.
And we could be fined if we refused to go to Sunday services at
the Church of England because of the political dominance of
that particular denomination. For some reason, they were a
little more squishy about Jews. Apparently, Jews could maybe,
kinda, sorta, sometimes serve on a jury. But not us.
What could go wrong with--I mean, this is just First
Amendment rights. We're stifling churches and other religious
institutions. Although we only in our title talk about church,
I hope you didn't feel left out. But if we repeal the Johnson
administration, it would be more than churches affected, would
it not, Rabbi?
Rabbi Saperstein. The damage that can be done is to bring
our corrosive, divisive, partisan splits in this country into
one of the few institutions that people with different
political, ideological, even religious differences are able to
come together in community and comity. It is why the
denominations want this protection. It is why 90 percent of
clergy want this protection.
The damage is it can flood--if you've got a choice
between--think of the hundreds of millions of dollars that went
into political campaigns. If you have a choice of getting a tax
deduction for it--now, this doesn't apply to your version. But
in repealing the Johnson Amendment, hundreds of thousands,
millions of dollars going in and getting a tax deduction or
not, you're going to be flooding the churches.
I don't want to have Republican churches and Democratic
churches, Republican mosques and Democratic mosques. And
bringing partisan politics into this is going to damage this.
So this isn't just a constitutional--it's not a
constitutional question that free speech exists. The only
question is whether it can be done with the subsidy of tax-
exempt and tax-deductible money.
Mr. Connolly. So, for example, a house of worship or a
denomination or just an individual entity, Muslim, Hindu,
Jewish, Christian, could voluntarily say, you know, I just
don't--I'm going to give up the tax deduction, the tax
exemption, and do my thing.
Rabbi Saperstein. It can. And there are some that do it. I
gave the example, a group of Jewish women here who created a
Jewish women's PAC that's very effective and very respected
across the country, because they wanted to do it freely and
without dividing their congregations.
Mr. Connolly. So far from being a matter of the exercise of
free speech, it's really about your tax status. And if you
really want to engage in that kind of partisan political
activity and accept donations, why not just give up your tax
exemption?
Rabbi Saperstein. It's not giving up your tax exemption.
You would remain tax exempt. You would create a (c)(4) that
would create a PAC. It just means that there's no tax-
deductible funds.
Mr. Connolly. So there's no impediment to forming a
501(c)(4), another entity, for that purpose if they wanted to.
Rabbi Saperstein. Correct.
Mr. Connolly. Is that correct?
Rabbi Saperstein. Correct.
Mr. Jordan. The IRS is taking forever to give you----
Mr. Connolly. Sorry, Mr. Chairman, still got my time.
So what's wrong with doing that, Rabbi? Why wouldn't people
want to do that instead of repealing the Johnson administration
which gets us into this real sticky mess? And, frankly, it's
going to, I think, create enormous division in the faith
community in America.
Rabbi Saperstein. You ask what's wrong with that. Legally,
there's nothing wrong with it. If I had my druthers, I'd much
rather do it the way those women sitting in the back of the
room did, create an entirely different entity that brings those
religious people together to do it and keep it away from the
houses of worship altogether. But, legally, they have the right
to do it.
Mr. Connolly. All right. My time is up. Thank you all for
being here.
Mr. Jordan. I'd just ask unanimous consent to submit into
the record a statement from the Ethics and Religious Liberty
Commission, which is part of the Southern Baptist denomination,
expressing their support for Mr. Hice's legislation.
Without objection, so ordered.
Mr. Connolly. In the spirit of the First Amendment, we have
no objection.
Mr. Jordan. Okay. I appreciate it. God bless you.
Mr. Meadows, the gentleman from North Carolina, is
recognize.
Mr. Meadows. Thank you, Mr. Chairman. And I thank the
gentleman from Georgia for his leadership.
Ms. Holcomb, we are not asking for tax-exempt political
donations to be made available to every church in America, are
we?
Ms. Holcomb. Mr. Chairman and members of the committee, no,
we absolutely are not. And thank you for the opportunity to
clarify.
The Free Speech Fairness Act, again, very simple, simply a
relief valve for speech. It does not eviscerate current
campaign finance laws. Contributions, expenditures are already
regulated. No, look, all we're talking about, again, is a
pastor's freedom to speak freely from the pulpit.
And it's a complete misnomer to think that we're just
talking about candidate endorsements here. No. Politics has
intruded on moral issues. So we're talking about a pastor's
freedom to address issues like the sanctity of human life, like
marriage, without fear of IRS retribution.
Mr. Meadows. So this whole narrative that talks about dark
money going to churches in order to actually support candidates
that may or may not be there is not only a red herring, but it
is a red herring of unbelievable crimson red. Wouldn't you
agree with that?
Ms. Holcomb. Respectfully and politely, it's fear-
mongering. It is not what is at issue here. And, frankly, if we
would like to discuss history, as was raised earlier, pastors
for the first 200 years of American history had this freedom.
They exercised it responsibly.
The Johnson Amendment was not enacted in order to address
any issue with churches. Frankly, it does not appear Senator
Johnson was even aware it would apply to them.
Mr. Meadows. Well, so, Ms. Holcomb, would you not agree
that in this very Capitol building, that we have clergy who
have statues erected in their honor for what they've done for
the founding of our country and battling for those religious
liberties, and they were the clergy that came from the pulpit?
And I would suggest that those political interventions,
maybe before we had the IRS, the long arm of the IRS reaching
into Ms. Engelbrecht and others--but did they not--the clergy
was not without a voice from the very founding of this Judeo-
Christian Nation.
Ms. Holcomb. That's exactly right. And they spoke out on
the most important issues of the day, including the
Revolutionary War, civil rights, so on and so forth.
But if I may, I'd like to also address one of these other
accusations that I've heard tossed around here, that it's
divisive to churches. With all due respect, that's quite
paternalistic. Churches are more than capable of handling their
own issues without the heavy hand of government coming in and
trying to prevent division within the church. No, these are
fundamentally theological decisions that should be made within
the church body itself.
Mr. Meadows. Well, I thank you for clarifying that.
Mr. Saperstein, Rabbi, I will come to you. You and I go way
back, and we have a passion on a number of areas. We happen to
disagree in terms of your premise here today and mine. So let
me put it in a vernacular that perhaps I can share from a
Christian perspective on what I'm hearing from many of our
pastors that may translate a little bit closer to home.
Some have suggested that I'm so pro-Israel that I make Bibi
Netanyahu look moderate. And so you know that my passion for
Israel is genuine and the Jewish people.
Rabbi Saperstein. I do indeed.
Mr. Meadows. And so I say that.
If a rabbi with a tax-exempt status starts to get involved
in any political discussions that may not have to do with
marriage or life, but let's say it gets involved in Palestinian
versus Jewish, or who should be a leader, or that we should
make sure that we elect more pro-Jewish Members of Congress, do
you think that that should be permitted in a synagogue?
Rabbi Saperstein. I think that that right exists right now
all across America.
Mr. Meadows. I agree. I agree it does. I agree it exists.
But do you believe that it should be there? Not that it exists.
Rabbi Saperstein. Yes.
Mr. Meadows. So, based on that premise, anything that would
provide for a chilling event that suggests that I should
support a candidate that is more pro-Israel, would you not
think that that should be across the board on any denomination
or any religion?
Rabbi Saperstein. I'm actually confused. Forgive me.
Mr. Meadows. I was hoping that you would be.
Rabbi Saperstein. I'm confused as to whether you're talking
about the issue or----
Mr. Meadows. I'm talking about the issue.
So let me tell you what's happening, is that we've gone to
a narrative that would suggest that we want churches to be
political endorsers and money pots for others, and that's not
really what we're talking about. What we want them to be able
to do is have the ability--and I think you and I agree on
this--to have the ability of free speech, direct from the
pulpit, without fear of retribution or losing their tax-exempt
status, deeply held religious beliefs that you and I both will
seek to defend. And that's what we're trying to get at here
today.
And so what I look forward to from you is some suggestions
on how we can do that. And I'm willing to put a prohibition on
moneys going through 501(c)(3)s to make sure. But if we take
this very far, we're going to have a chilling effect on free
speech, and I'm sure that's not what you want.
Rabbi Saperstein. You said this was a red herring. Put
aside Mr. Hice's proposal here.
Mr. Meadows. I don't know that you can. But go ahead.
Rabbi Saperstein. If we simply undo the Johnson Amendment,
is it not clear that then nonprofits would be able to give
money into--and because churches have exemptions from reporting
990s and contributions on it--there would be this dark money
that would flow through that. Either you take away the
exceptions from the church, God forbid, or you actually allow
it to continue and churches, religious institutions alone,
would have the ability to fund things without it being
transparent. Is that not a valid concern?
Mr. Meadows. I think it is a jump, a logical fallacy. I
mean, I'll just speak bluntly. I think that's a logical
fallacy. But I'm willing to have the debate.
And I guess what I'm saying, Rabbi, is this. If you will
come to this committee with ways to protect free speech, you
will have someone who is very willing to make sure that a
501(c)(3)'s tax-exempt status does not get used in an
inappropriate manner financially, with at the same time
allowing for complete free speech to happen from the pulpits
and other areas of worship. Sound fair?
Rabbi Saperstein. Again, I think we differ on whether that
free speech exists today or not.
Mr. Meadows. We do differ on that.
I'll yield back.
Mr. Jordan. Real quickly before turning to Mr. Raskin.
Ms. Holcomb, can a church contribute to a political
candidate's campaign today?
Ms. Holcomb. No.
Mr. Jordan. No. And if the Johnson Amendment is gone, would
a church be able to contribute to a political candidate's
campaign?
Ms. Holcomb. Look, we're talking about the Free Speech
Fairness Act. No, absolutely not.
Mr. Jordan. No, no. But they could be able to speak, right?
That's all we're talking about. They could be able to exercise
their First Amendment liberty where it says Congress shall not
abridge freedom of speech. That's all that happens. Well,
imagine that, we'd actually have the First Amendment the way
it's supposed to be.
Mr. Raskin.
Mr. Raskin. Mr. Chairman, thank you very much and for
waiving in and allowing me to participate this hearing.
I want to start with just two questions of nomenclature.
One is the so-called Johnson Amendment was, of course,
introduced by Senator Johnson, but it passed on a bipartisan,
overwhelming bipartisan basis, in a Republican Congress, and
signed into law by President Eisenhower. So this has been
standard American law for decades.
Secondly, the First Amendment Fairness Act, I believe
that's what it's called, you know, with all due respect, the
First Amendment doesn't need a fairness act. The First
Amendment is supreme to any statute we might pass. The First
Amendment is its own fairness act. If someone is violating the
First Amendment, go and sue under the First Amendment.
So let me start with that. Are any of you aware of any
constitutional litigation since 1954, in the last 60-plus
years, challenging the so-called Johnson Amendment or the
Eisenhower Amendment as unconstitutional and what its success
has been?
And forgive me for going fast, but we just have so little
time. Are you aware of any? Have you ever brought a case on it
or no?
Ms. Ancalle. I'll defer to Ms. Holcomb.
Mr. Raskin. Ms. Engelbrecht, are you aware of any decisions
striking it down?
Ms. Engelbrecht. Not any decisions, no. But we sued the IRS
in 2013 just to prove the point.
Mr. Raskin. Ms. Holcomb?
Ms. Holcomb. Mr. Chairman, members of the committee, we
cannot affirmatively sue the IRS due to Federal law.
The Anti-Injunction Act, we are not allowed, pursuant to
Federal law----
Mr. Raskin. The Anti-Injunction has to do with Federal
spending.
Ms. Holcomb. We can't--no, I respectfully disagree. We
cannot----
Mr. Raskin. Are you saying the church cannot sue the
Federal Government?
Ms. Holcomb. We cannot, without having been penalized, come
out and sue the IRS to challenge the constitutionality of the
Johnson Amendment. Happy to provide you with briefings----
Mr. Raskin. Okay. Well, let's discuss that.
Rabbi Saperstein, are you aware----
Rabbi Saperstein. That's what the Branch Ministries case
was, wasn't it----
Ms. Holcomb. Respectfully disagree once again. No, that's
not the case whatsoever. Branch Ministries----
Mr. Raskin. All right. We'll have to litigate it after.
In any event, I was a little surprised to hear this
repeatedly described as an unconstitutional law that's been on
the books for six decades and it's never been struck down
before. I mean, that's----
Ms. Holcomb. Because we can't----
Mr. Raskin. --that's a miracle of nature. That's remarkable
in the United States of America. There are churches that win
suits all the time in the U.S. Supreme Court.
But, okay, let me ask you this. Have any of you as private
citizens ever been stifled in your own political speech, your
ability to go out and say you believe X, Y, or Z, for moral,
religious, philosophical, or political reasons? Have any of you
ever been restrained in your speech or your spending?
Ms. Holcomb. Respectfully, sir, I'm not a church or a
nonprofit.
Mr. Raskin. Okay. As a citizen I was asking you. As a
citizen, have you ever been stifled because of your religious
views?
Ms. Holcomb. [nonverbal response.]
Mr. Raskin. Okay.
So let me ask you this--were you going to say, Ms.
Engelbrecht? Have you?
Ms. Engelbrecht. Well, you qualified at the end based on
religious views. And I would just say that in my instance I was
interested in the advancement of election integrity, and that
seemed to draw the ire of a great many Federal agencies. And,
yes, I do believe that I was being suppressed because of my
speech.
Mr. Raskin. Okay. Well, you know, at some point I'd love to
talk to you about that. I actually have some family history,
because my father, who worked in President Kennedy's
administration was on Nixon's enemies list, and the IRS went
after him. So there's abuse of government all the time. But
what we're here to talk about is the law, and what is the law
going to be.
So let me ask you this. Do all of you agree that
corporations and citizens should not be able to funnel dark
money through churches in order to get into political
campaigns? Like, if I wanted to support the Mark Meadows for
President campaign, hypothetically speaking, I should not be
able to give $10 million to a church to go out and spend that
money on an anonymous basis. Do all of you agree or do some of
you think that is First Amendment protected? Any answers on
that?
Ms. Holcomb. Respectfully, sir, it's currently prohibited
by law, and the Free Speech Fairness Act does not change that.
Mr. Raskin. No, I understand. But I'm a law professor, so
don't fight the hypothetical. Imagine a world without
hypotheticals.
You know, what I'm saying is, do you think it's
constitutional for us to prevent people from channeling money
through churches on an anonymous dark basis to put into
political campaigns? Is that a First Amendment problem or not?
Rabbi Saperstein. In a word, yes.
Mr. Raskin. You think it's constitutional to ban that.
Do you believe it's constitutional to ban it?
Ms. Holcomb. Respectfully, again, that's just not what's at
issue here.
Mr. Raskin. Okay. Do you guys think it's constitutional to
ban conduit contributions through churches to political
candidates?
Ms. Ancalle. In my statement, we have endorsed the Free
Speech Fairness Act, and that's what we're advocating for, and
that's what we're here to advocate for today. And, like Ms.
Holcomb said, that's not the intent of the Free Speech Fairness
Act.
Mr. Raskin. Okay. Well, you know, it was fascinating to me
that it was something like 90 or 100 religious organizations or
churches have come to lobby against this. In other words, on
the terms that I heard described before, they're here to lobby
against, theoretically, their own free expression rights, and
it doesn't make any sense to me.
But I think that what they perceive is that the repeal of
the so-called Johnson Amendment is an attempt to open up a
gaping hole in the law for super divine dark money to pour
through into the political system. And if it's not, then it
should be very explicitly amended to say that nobody should be
able to give money to a church for the purposes of putting it
into a political campaign.
If all this is about is somebody being able to say what
they want from the pulpit, I guess I'm with Rabbi Saperstein, I
haven't seen any evidence that that's actually in danger. But
do any of you have any cases where somebody has not been able
to state their political views from the pulpit?
Ms. Ancalle. I'll just say that I was actually very excited
to hear the statement of the ERLC, which is the policy arm of
the Southern Baptist Convention, one of the largest
denominations in this country, and they actually do support the
Free Speech Fairness Act.
Mr. Raskin. Right. But my question is, are you aware of any
IRS persecution or prosecution of anybody for making a
political statement at the pulpit?
Ms. Holcomb. Yes, absolutely so. All Saints Episcopal
Church was one example provided. It is also in my written
testimony.
But, respectfully, I would just like to point out, we don't
silence the minority just based on the whim of the majority. So
we're going to do what's right. And there are pastors across
the country asking for this relief from Congress right now.
Mr. Raskin. Yeah. Okay.
Well, we seem to have differences to the facts, because
some people seem to think that the First Amendment is working
great, that the Johnson Amendment has worked great for decades,
and we seem to have a difference as to values. Some people
believe that churches are actually much better off not being
able to be dragged into TV sound bite wars and negative
advertising, and others think that that's perfectly fine, that
churches should be involved there.
But let me ask you this. If a church does want to get
involved, it can set up a (c)(4) right now. It's just that it
can't receive tax-deductible contributions to do it. Is that
right?
Ms. Holcomb. Respectfully, churches aren't asking for
(c)(4)s. All they want is just to be able to freely apply
Scripture to every aspect of life without having the IRS on
their backs, censoring their speech.
Mr. Raskin. Well, Ms. Holcomb, do you believe the church
can freely apply millions of dollars of dark money
contributions to advance its view of Scripture in the political
process?
Ms. Holcomb. That's not what they're asking for. Certainly
not.
Mr. Raskin. But I'm asking you, do you believe that
millions of dollars should be able to channeled to churches?
Mr. Jordan. The time of the gentleman has expired.
Mr. Raskin. All right, saved by the bell.
Mr. Jordan. The gentlelady can respond if she would like.
You weren't really saved by the bell. You were given a
minute and 40 seconds past the bell.
Ms. Holcomb. Respectfully, I will just point yet again that
campaign finance laws are in place that address those concerns.
The Free Speech Fairness Act does not eviscerate those campaign
finance laws, and that's simply not what America's pastors are
asking for.
Thank you.
Mr. Jordan. Ms. Engelbrecht, Professor Raskin asked about
the stifling of free speech. He qualified it, as you said,
based on your religious beliefs. But certainly there was an
attempt by the government to stifle your free speech rights so
much so that--and I don't know if the professor was here for
your testimony and for some of the earlier questioning--eight
visits from the IRS, six visits from the FBI, two visits from
the Bureau of Alcohol, Tobacco and Firearms. OSHA visited your
business. Texas EPA visited your business. A letter from Mr.
Cummings, couple letters from Mr. Cummings, and TV appearances
where he specifically called you and your organizations out.
All this happens, coincidentally, right after you filed for
tax-exempt status for King Street Patriots and True the Vote.
Why do you think that--I mean, that's an awful of lot of
government getting involved in your life and coming after you
and looking into what's going on. If that doesn't have a
chilling effect and stifling effect, and if that's not the
heavy arm of government, I don't know what is.
Why do you think that happened? Why did they do it?
Ms. Engelbrecht. I think it happened because they saw the
Johnson Amendment as a gateway through which they could attempt
to silence those who dissented from their perspectives.
Mr. Jordan. So you think it happened because they just
didn't like your point of view? You think that was the main
reason?
Ms. Engelbrecht. I think that was the primary reason, yes.
They saw a pro-liberty election integrity organization growing,
and growing quickly, and they wanted it gone.
Mr. Jordan. Yeah. I would actually say it's a little more
than that, frankly, respectfully. I would say it's not just
that they didn't like what you were speaking out about, that
they didn't just disagree with your political point of view.
They did it because you were effective, right?
Ms. Engelbrecht. Absolutely.
Mr. Jordan. Because you were making a difference, right?
You were focused on election integrity and, like, ``Whoa, whoa,
we can't have that. We disagree with this speech. And, oh, by
the way, she's having an impact.'' Imagine that. And they said,
``Time out. Time out. Time for the heavy arm of government.''
Ms. Engelbrecht. That's right.
Mr. Jordan. Right?
And now we know, in your same town, pastors, the heavy arm
of government weighed in on them and said, ``Hey, by the way,
you know, you're tax exempt, you can preach what you want, you
can have your church, but can you send us your sermons? We, the
government, want to look at what you're preaching on Sunday.''
Are you kidding me?
Ms. Engelbrecht. And I can tell you, having lived through
that in Houston, Texas, when that happened in our churches, it
turned the community upside down.
Mr. Jordan. Sure did. Sure did.
Mr. Raskin. Would the chairman yield?
Mr. Jordan. I'm going to give the gentleman from Georgia a
round here. And then, if the professor would like another short
round, then we'll let our witnesses be dismissed and close the
hearing.
Mr. Hice. Thank you.
Mr. Jordan. Gentleman from Georgia is recognized.
Mr. Hice. Thank you, Mr. Chairman.
And I do have a letter that came out last Congress by a
host of organizations supporting the Free Speech Fairness Act
and--for the Johnson Amendment. I'd ask unanimous consent for
it to be added, included in the record.
Mr. Hice. And I find great offense that we continue hearing
that this is all about laundering dirty money through the
churches. Nothing could be further--that's nothing but fear-
mongering. And it's false. It's shameful. This is about free
speech. And there are laws to prevent laundering, and nothing
in that regard changes.
Rabbi, have you ever endorsed a candidate from your
synagogue?
Rabbi Saperstein. No.
Mr. Hice. Okay. Have you ever received a threatening letter
from the IRS----
Rabbi Saperstein. No.
Mr. Hice. --for whatever you said in your synagogue?
Rabbi Saperstein. No.
Mr. Hice. Okay. I have. I've received a number of them. And
I've received them before I ever endorsed a candidate from the
pulpit. And they are intimidating. They are threatening. They
tell me that I can be sued, that my church can be sued, that we
can lose tax-exempt status if I address certain issues from the
pulpit.
Rabbi Saperstein. The IRS sent such a letter?
Mr. Hice. No. I receive them from left-wing organizations
that are proclaiming what the IRS has the right to do. And
whether it's coming from the IRS or not, the fact is those
letters are chilling and they distort a very vague Johnson
Amendment that is being used as a bully pulpit to self-censor
people right out of involvement.
And the fact that you have not received a letter says to me
you have no business even addressing what the content of those
letters consist of.
It's amazing and ironic to me that people here today who
claim to be supporters of separation of church and state are
the very ones demanding that the government censor what's said
in churches. And it just--it's contradictory in every sense of
the word.
It ought to be the pastor, it ought to be the church that
has a right to determine what is spoken from the pulpit, not
the government. When government starts determining the content
of sermons, we are in major trouble.
So let's go back to the basics, the bird's-eye view of why
we're here today.
Ms. Holcomb--I don't know who to address this to, so you
all just chime in, but let's go relatively quickly.
The purpose why the Johnson Amendment came about in the
first place, was it enacted to stop political speech from
political opponents?
Ms. Holcomb. Mr. Chairman, members of the committee, it was
designed as a political ploy by then-Senator Lyndon Johnson to
shut down two secular nonprofits.
Mr. Hice. There we go. That was the purpose. And I made the
quote from the IRS itself acknowledging. That's the purpose.
Right there is the purpose. That is why we're here today.
Mr. Hice. It is because the Johnson amendment was enacted
for the distinct purpose of silencing political opponents who
happen to be leading nonprofit organizations. That's why we're
here. And that, over 60 years ago, has now become a massive
tool of intimidation for 501(c)(3) organizations, and that
precisely is what--it's not about money; it's about free
speech, it's about deliberately, purposefully, intentionally
trying to silence the beliefs in the public square of those who
are in nonprofit 501(c)(3) organizations. And that must change.
That is unconstitutional. That is un-American, and it needs to
change.
All right. The importance of 501(c)(3) organizations in our
society, in 10, 15 seconds, how important are they?
Ms. Ancalle. They're very important. I was going to mention
that a study, a recent study showed that 501(c)(3)
organizations provide more than $1 trillion a year in the
United States alone in goods and services. These are the people
in need. 501(c)(3) organizations are very important. And
they're not just getting--they're not subsidized by the
government. They're actually giving a lot to the American
people.
Mr. Hice. Ms. Engelbrecht, you mentioned in your testimony
that 501(c)(3)s are an endangered species. Can you elaborate?
Ms. Engelbrecht. Absolutely. I started my organization in a
time when there were many organizations being started, in
pursuit of liberty and trying to--in ways that had not been
seen for years, engage citizens in political speech and the
ability to speak freely. And when the IRS began singling groups
out, that shut down, and it hasn't come back. It hasn't come
back like it was, because who wants to be put through that? I'm
still in court. Who wants that? That's why the Johnson
amendment has to be repealed, replaced. Something has to be
done, because we don't want that stain on the fabric of our
country.
Mr. Hice. Mr. Chairman, I yield--and I will just say,
perhaps we ought to add 501(c)(3)s to the endangered species
list, because I agree with you wholeheartedly, and it would be
the one time that I would support the endangered species list.
But thank you very much. I yield back.
Mr. Jordan. Thank you, Jody. And thank you--or, Congressman
Hice, for all your great work over--not just in Congress, over
the years on this important, important issue.
I just want to ask one--a couple questions here, again, to
Ms. Engelbrecht. So I want you to tell this committee and for
the record just what it feels like----
Oh. Yeah, I'm coming back to you. Yeah.
-- just what it feels like when you get eight contacts from
the FBI, six from the IRS, two from the BATF, OSHA, EPA, you
have an important member, influential member, ranking member of
Congress go on TV, say things about you personally, send you
letters. What's that feel like.
Ms. Engelbrecht. It's terrifying. And for 2 years, I didn't
tell anybody, because there was such a stigma that I felt would
be associated. And we were already trying hard enough to get
our (c)(3), so we were being held in--in limbo.
Mr. Jordan. I'm just talking the personal, emotional side
of things.
Ms. Engelbrecht. But on the personal and emotional side, it
was--it was terrifying.
Mr. Jordan. Yep.
Ms. Engelbrecht. And I didn't see it coming, because I knew
what--what our motives were, and that was just to get citizens
to engage in the electoral process.
Mr. Jordan. Since you were just starting a local tea party
group.
Ms. Engelbrecht. Yes, just starting a local group to say,
you know, we are not enough volunteers in the polls. Let's
encourage people to volunteer.
Mr. Jordan. When you filled out that application and sent
it in, did you even----
Ms. Engelbrecht. No.
Mr. Jordan. Never crossed your mind, did it?
Ms. Engelbrecht. No.
Mr. Jordan. No idea this was going to happen?
Ms. Engelbrecht. No.
Mr. Jordan. And suddenly, the heavy arm of government, as
Ms. Holmes Norton talked about, is all over the Engelbrecht
family.
Ms. Engelbrecht. Yeah.
Mr. Jordan. Right?
Ms. Engelbrecht. Yes. But I'll say, if I may, one of the
quotes that I held dearest during that time was from Deitrich
Bonhoeffer, who said not to act is to act and not to speak is
to speak, and that is what made me realize that I had to stand
up and speak, because I would suspect very similar to what the
churches try to do when they get together collectively and
speak out in defiance of the Johnson amendment.
Mr. Jordan. Yep. I imagine there were some pastors in your
neighborhood who saw what you were going through, and they had
to kind of wonder, man, maybe I better tone it down a little
bit next Sunday, right?
Ms. Engelbrecht. Without question.
Mr. Jordan. I mean----
Ms. Engelbrecht. Without question.
Mr. Jordan. I mean, pastors won't--they're going to preach,
but some of them, it was probably in the back of their mind,
I'm guessing.
Ms. Engelbrecht. Absolutely. Or other group leaders who
would come up to me and say, I don't--I don't want to go
through what you're going through. We're going to shut this
thing down.
Mr. Jordan. Right. And you weren't the only conservative
group around the country who was----
Ms. Engelbrecht. No. One of hundreds.
Mr. Jordan. There were hundreds.
Ms. Engelbrecht. One of hundreds.
Mr. Jordan. Hundreds.
Ms. Holcomb, I bet you've had clients who had to go through
the same kind of experience Ms. Engelbrecht went through,
right?
Ms. Holcomb. We most certainly have. And, again, we hear
from pastors all across the country who are fearful of going
through that process.
Look, we can't trust the IRS with emails. What are we doing
trusting it with our fundamental First Amendment freedoms?
Mr. Jordan. All right.
Mr. Raskin, we're going to give you the last word, and you
can have as much time as you want.
Mr. Raskin. Mr. Chairman, thank you so much. And this has
been a very clarifying hearing. I want to thank Mr. Hice
especially for his comments. And I want to start with that.
Mr. Hice is very reassuring to me. He disclaims any
interest in creating a divine dark money loophole in the law.
This is not about being able--George Soros being able to
channel millions of dollars from a not-for-profit through
churches or synagogues or mosques into politics, it's not about
allowing the Koch brothers to put hundreds of millions of
dollars into churches on an anonymous, undisclosed basis in
order to make that money tax deductible.
Okay. So everybody agrees that--at least some of you--do
all of you agree you'd have no problem with an amendment to his
bill saying that nothing here assures any--nothing here gives
anybody the right to put any money into a church for the
purposes of spending it on a political campaign? Would all of
you agree?
Ms. Ancalle. Sure.
Ms. Holcomb. Absolutely.
Mr. Raskin. Yeah.
Ms. Engelbrecht. With all due respect, I think that
separation of church and State just means that the government
should stay out of churches, and I think the churches should be
able to do what they want to do and the way they want to do it
in the moral fiber of that church and the leaders of the
church, and all of the religious institutions should be--should
be allowed to do what they want to do.
Mr. Raskin. Okay. So if I'm a church, I'm the Jim Jones
Church, whatever his church was called. I can have people give
me millions of dollars in money that's tax deductible for them
and I'm tax exempt, and then I can go out and say, let's elect
Ms. Holcomb to Congress or let's defeat Ms. Holcomb for
Congress, and there's no problem with that. And I can recruit
people to give me money for those purposes. Is that right, just
in your view?
Ms. Engelbrecht. I would say that I would hope that the
true north of any religious institution or nonprofit would
stand clear in their----
Mr. Raskin. But it's up to them. We agree under the First
Amendment, they define their religion any way they want. I've
got the religion of dark money. That's my religion. In America,
you can create whatever religion you want, right? So my
religion is I want to collect dark money and put it into a
campaign and save my donors having to pay taxes on it. So
that's okay on your view. I understand Ms. Ancalle's not there.
I think--I don't--I think Ms. Holcomb's with me on this. I
think Rabbi Saperstein's with me on this. You would like an
amendment which says we're going to prevent a dark money
loophole from emerging. But you think that that's guaranteed by
the First Amendment?
Ms. Engelbrecht. I recognize this is a difficult situation,
but in my experience, less government is always better.
Mr. Raskin. Let me ask you about your situation, because
I--forgive me. I had another meeting and I missed it, but
you're not a church. Your 501(c)(3) is secular, right? There's
nothing religious about it, right?
Ms. Engelbrecht. Correct.
Mr. Raskin. Okay. So whatever rights you're asserting for
yourself, either constitutionally or as a matter of policy,
would go for United Way or Harvard University or Liberty
University, right? In other words, Harvard University could
say, not only do we think we've got the smartest people in the
country here, we're going to take money out of Harvard's
corporate treasury, which is, I think, $17 billion now, and put
it into political campaigns to support people for President or
U.S. Senate or Governor, and you've got no problem with that,
right? You think that's the right as a 501(c)(3) organization?
Ms. Engelbrecht. I do not profess to be an expert on
whether or not repealing the Johnson amendment would have such
a global impact on----
Mr. Raskin. I'm asking your views about 501(c)(3)
organizations, which are charitable, religious, and
educational. And yours is charitable, right, or is it
educational?
Ms. Engelbrecht. Well, it's a little bit of both, but,
yeah.
Mr. Raskin. Okay. But you're asserting for yourself the
right to collect money to put into political campaigns, to get
politically active, and that would apply also for the United
Way----
Ms. Engelbrecht. Right.
Mr. Raskin. --Harvard University, Howard University, every
university in the country, which traditionally have been
totally nonpolitical and nonpartisan. Now, they can have
someone come and speak like from the pulpit at graduation, and
it could be President Trump, it could be President Obama, what
have you, nobody's revoking their 501(c)(3) status for making a
political statement there, right? That's offering a little
micro speech forum, but it's another thing to take money out of
the corporate treasury of the university and put it into
politics. But you think that's their First Amendment right. I'm
just trying to clarify here intellectually.
Ms. Engelbrecht. Again, with all due respect, I recognize
that this is a multifaceted discussion. I think fundamentally
that less government is better. And if we want to point the
finger of abuse, I think the finger should be pointed directly
at the Internal Revenue Service.
Mr. Raskin. I agree. Then you might be talking about
administrative abuse--I don't know what the facts are; I'd love
to get more about them--but that's administrative abuse and
harassment, but that's different from what the law is. We've
got to determine what the law is going to be, right?
Ms. Engelbrecht. I----
Mr. Raskin. Would you agree, for example, that government
itself cannot spend money on political campaigns? Like, we
don't want the Department of Education or the Department of
State going out and spending money in Raskin for Congress or
Meadows for President. Would you agree to that?
Ms. Engelbrecht. I believe the government should govern
itself, yes.
Mr. Raskin. Okay. Well, so the First Amendment doesn't
guarantee somebody who's in government the right to spend money
in that way, and I don't think it guarantees the right of a
not-for-profit corporation, which collects tax deductible
contributions and itself is tax exempt, to participate in
politics. And that's basically the line that was drawn with the
Johnson-Eisenhower amendment back in the 1950s that we've had.
And it's never been struck down. And most people think that it
tracks perfectly the separation of church and State. And
nothing that I've heard disproves that, but I want to ask a
tough question for Rabbi Saperstein.
Do ministers and rabbis and imams and, you name it, do they
have a right or do they not have a right to go through their
whole theological disquisition on whatever it might be, Easter
or Passover, you name the holiday, and then say, and therefore,
everybody should vote for Donald Trump for President? Can they
say that or can they not?
Rabbi Saperstein. They have a free speech right to say
that.
Mr. Raskin. They have a First Amendment right to say that.
Rabbi Saperstein. Right.
Mr. Raskin. And do you know of any cases where they're
being put in jail for doing that or the 501(c)(3) status of the
church is being revoked for doing that?
Rabbi Saperstein. Again, the Pierce Creek Church and the
Branch Ministries case, which they took out a full page ad----
Mr. Raskin. They took out an ad. That was spending, right?
Rabbi Saperstein. But I don't know of anyone----
Mr. Raskin. Okay.
Rabbi Saperstein. --who's facing that----
Mr. Raskin. This to me isolates the critical issue. Okay. I
would have a serious problem with the IRS or any other
government entity entering a church and dissecting someone's
sermons or trying to castigate or chase them or punish them for
saying something, even if it's something that's political, and
therefore, everybody go vote on Tuesday against Donald Trump or
for Donald Trump. I just--you know, and--I've got a problem
with that. But I think that the vast majority of the American
people have accepted the idea that churches should not be
political slush funds, and we should not be able to take tax
deductible money given to churches for charitable and
educational purposes and put directly in a political campaign.
And I haven't heard anything today--and I'll close with
this: If anybody wants to convince me why churches or Harvard
University or any other, United Way, should be involved in our
political campaigns on the money basis.
Rabbi Saperstein.
Rabbi Saperstein. Yeah. I just want to be sure, Mr. Hice, I
don't know if you were out of the room when I was very clear
about this. The money issue I was dealing with on the broader
question of the repeal of the Johnson amendment, I exclusively
said that your bill is aimed at obviating that. Although I
would ask you, under the Buckley v. Valeo and Citizens United
case, thread of cases that says that campaign money is
expressive conduct that is deserving of constitutional
protection here, if you open the door to free speech in the--in
the churches with tax deductible money, does that then become
another form of expression, another form of speech here that--I
certainly think we will get lawsuits to that effect from
people. So even there, I have concerns, but I explicitly
differentiated your----
Mr. Raskin. Just to reclaim my time for a second, if I
might. I mean, the Hobby Lobby case dangerously opens the idea
that churches are political organizations, and that's why I
wanted to make sure that everybody, with the exception of Ms.
Engelbrecht, believes that the 501(c)(3) exemption should
stand. Because if it doesn't, understand what's going to
happen. The moment that you say that churches are just like the
Democratic Party or the Republican Party or any other political
organization, it might last for a year or two, it might be
great for the churches that want to do it, but then everybody's
going to say, well, why are they tax exempt, and why can people
give money to them on a tax deductible basis? Because all the
money's going to start to flow in that direction. I'd be an
idiot to give my money, $100 to the Democratic Party instead of
giving it to the Unitarian Church and let them spend it that
way if they had the right to do it, you see.
So that's why I assume all of these churches and religious
organizations are saying, no, don't go there, be aware what you
wish for.
Rabbi Saperstein. I explicitly raise that fear and concern.
We have special protections in the religious community and in
the houses of worship that other entities don't have, a number
of exemptions on the basis we are not like everyone else; only
we have an establishment clause that affects the religious
entities of this country. And if you start asking to be treated
like everyone else in this regard, we really endanger those
exemptions. So I'm very glad that you raised that issue.
Ms. Holcomb. Mr. Chairman, if I may.
Mr. Hice. [Presiding.] Please.
Ms. Holcomb. Thank you.
Well, Mr. Raskin, I just wanted to say, I'm delighted to
hear that it sounds like we agree on the fundamental premise
that the IRS should not be censoring pastors' sermons. And
that's really relieving to me, because that's really all that
the Free Speech Fairness Act is going to do, again, is just
create that free speech valve, and it allays--it should allay
your concerns about campaign finance law, because it doesn't
touch it.
Mr. Raskin. Well, that's what you're saying, but that's not
what the language of the bill says at this point. The reason
why everybody's talking about dark money is because the way
it's written is it completely opens up a vast reservoir of
divine dark money to pour into the political process. But
you're saying that's not the purpose here.
Ms. Holcomb. Respectfully----
Mr. Raskin. And I understand that the sponsor's not saying
that. So that's all a question of draftsmanship in the
legislation.
Ms. Holcomb. Respectfully, all the language of the bill
actually does, it says within the ordinary course of your
ministry and as long as it incurs no more than de minimus or
incremental expenses, which is an extremely common phrase----
Mr. Raskin. But what if my ministry----
Ms. Holcomb. --in tax law, easy to apply----
Mr. Raskin. Ms. Holcomb, let me ask you, what if my
ministry--see, in America, we have such radical, expansive,
wide open, robust freedom of religion, that everybody can
define their religion as they please, right? And what if my
ministry is my theology tells me I've got to get involved in
politics however I can, and then we repeal the Johnson
amendment, and so suddenly we say, I can take all of the money
that's coming in to me and go spend it in a campaign, because
that's what my theology tells me to do?
Ms. Holcomb. Under the Free Speech Fairness Act, they're
going to have a really rough time of it, because it's only de
minimus expenditures, again, and only speech that can be done
in the ordinary course of their normal ministry.
This is not a cataclysmic event. We're simply talking about
a relief valve for free speech.
Mr. Jordan. Mr. Chairman----
Mr. Raskin. Okay.
Mr. Jordan. --I just want to let the record show that the
professor, who's not a member of either subcommittee, got more
time than anyone else, and we appreciate----
Mr. Raskin. I'm very grateful for it----
Mr. Jordan. --you being here.
Mr. Raskin. --being a professor and all. Thank you very
much.
Mr. Hice. I'd like to thank our witnesses for taking time
out of your schedule to be with us here today, we deeply
appreciate it, and for all the participation from the
committees.
We're good? All right.
If there's no further business, without objection, the
subcommittee stands adjourned.
[Whereupon, at 12:38 p.m., the subcommittee was adjourned.]
APPENDIX
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