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Protecting free speech rights through tax reform

The Tax Cuts and Jobs Act accomplishes the goal of ensuring that all Americans, no matter their jobs, are treated equally under the law

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Washington, November 16, 2017 | comments

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Protecting free speech rights through tax reform

The Tax Cuts and Jobs Act accomplishes the goal of ensuring that all Americans, no matter their jobs, are treated equally under the law

By Rep. Jody Hice

President Theodore Roosevelt remarked in a 1910 address to the Iowa State Teachers’ Association that “nothing in this world is worth having or worth doing unless it means effort, pain, difficulty.” In developing the first comprehensive tax revision in three decades, it takes a mammoth effort and, at times, it can be painfully difficult. But tax relief and tax reform are undertakings that are worth completing, not simply because H.R. 1, the Tax Cuts and Jobs Act, will create a tax code tailored for the 21st century, but because it will also curb a decades-old free speech barrier by allowing tax-exempt institutions, including churches and nonprofits, to participate in and contribute to the important political discussions facing our Nation.

Simply put, H.R. 1 is a critical victory for the First Amendment as it takes necessary steps to correct a patently unconstitutional provision in the U.S. Tax Code. This rider, commonly referred to as the Johnson Amendment, was the result of then-Texas Sen. Lyndon B. Johnson airdropping language into H.R. 8300, the Internal Revenue Code (IRS) of 1954, during the House-Senate conference, for the purpose of ridding himself of political foes he faced back home who claimed that he was soft on communism.

When the 1954 tax package was signed into law, the Johnson Amendment placed undue communication constraints on political speech of 501(c)(3) organizations. In order to achieve tax-exempt status, churches and nonprofits have essentially given away their right to free speech, else they risk facing the wrath of the IRS, a federal agency that has the power to destroy lives.

As a pastor for nearly 30 years prior to my arrival in Congress, I can tell you firsthand that it has had a chilling effect. Every election cycle, pastors across our country receive alarming letters from anti-religious organizations threatening to report the church to the IRS should they engage on topics considered to be an “issue advocacy.” Even worse, the proverbial elephant in the room is the agency’s inconsistent approach to applying the law and its failure to clarify standards for enforcement.

In 2008, I was one of 33 pastors who took part in the first annual Pulpit Freedom Sunday, where we spoke on the political issues of the day to our congregations, recorded the sermons, and sent copies directly to the IRS for a response. We didn’t get one. So, we did it again…and year after year we never received a response.

While thousands participate in this annual event, the IRS has taken no action to counteract this initiative, thereby reinforcing the inconsistent and uncertain nature of the law.

Overall, the Johnson Amendment has created two very real problems within our legal and tax system. For one, it is unconstitutional. The U.S. Supreme Court has stated in numerous cases that Americans do not give up their free speech rights simply by going to work. When it comes to someone’s own speech, that individual may choose to exercise discretion, but government censorship of speech is in blatant violation of the fundamental First Amendment rights outlined in our Constitution.

Second, the capricious enforcement by the IRS of current law lacks transparency and clear interpretation. I applaud President Trump for vowing to “destroy the Johnson Amendment” and issuing an executive order to promote free speech and religious liberty this past May. It was an important first step. However, we need a permanent, legislative remedy that codifies broad corrections to the tax code by adhering to our Constitution and putting an end to the violation of these basic rights.

Congress has the opportunity to achieve just that by passing the Tax Cuts and Jobs Act, which incorporates language from the Free Speech Fairness Act – legislation I introduced along with House Majority Whip Steve Scalise (R-La.) and Sen. James Lankford (R-OKla.). The substantive change in the code reinstates the speech rights of any 501(c)(3) institution that wishes to communicate its political viewpoint in the normal course of business with de minimis expenses.

I often hear from supporters of the Johnson Amendment about the importance of maintaining a fine line between the establishment of religion by the federal government, but that principle works both ways. Regulating the content of a minister’s sermons is clearly not the designated mission of the IRS, and the government simply should not be in the business of policing speech. Our Constitution states that all Americans have the unalienable right to free speech, to speak out on topics of conscience and conviction, and it’s time that we uphold those founding principles. I believe the Tax Cuts and Jobs Act accomplishes the goal of ensuring that all Americans, no matter their jobs, are treated equally under the law.

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Congressman Hice represents Georgia’s 10th District and is a member of the House Oversight and Government Reform Committee

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