Jonathan Turley: VP Harris' McAuliffe endorsement video may violate federal law

Jonathan Turley: VP Harris' McAuliffe endorsement video may violate federal law

October 18, 2021

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Democratic leaders have pulled out the stops to help Terry McAuliffe’s struggling campaign for governor of Virginia. Figures from Barack Obama to Stacey Abrams have stumped for McAuliffe, who is in a tight race with businessman Glenn Youngkin. 

The key for McAuliffe is Black voters and, to spur turnout, Vice President Kamala Harris has taped an endorsement of McAuliffe that is reportedly being played at hundreds of African American churches around the state. The problem is the “Johnson Amendment” makes such political pitches in churches a violation of federal law. 

Making matters worse, this knowing violation occurred just days after the filing of a complaint against White House presssecretary Jen Psaki for clearly violating the Hatch Act in using the White House press room to support McAullife.

The Harris video was aired last Sunday and is scheduled to air again next Sunday. It was also quoted and aired by CNN. As Harris said in her much maligned “Space video,” you can see the violation of federal law “with your own eyes.”

It is part of McAuliffe’s push called “Souls to the Polls” and is a full-throated endorsement of McAuliffe that calls on Black churches to turn out for his election. Harris declares “I believe that my friend Terry McAuliffe is the leader Virginia needs at this moment.”

The problem is that such direct politicking in tax-exempt churches has been unlawful for decades. Section 501(c)3 states:

“Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

Harris is calling souls to the polls in a straight political speech. 

That bolded language is the “Johnson Amendment” prohibition.

The IRS makes clear that such violations will not be tolerated. The agency warns that tax-exempt groups “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” It further stresses:

“Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.”

The video was a direct political pitch to be played in hundreds of churches.

What is most hypocritical is that the Democrats used the opposition to the Johnson Amendment by former President Donald Trump as a rallying cry in the last election. Trump boasted that he got rid of the Johnson Amendment. That was not true. Here is the critical language in the Trump executive order:

“In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”

The order expressly requires adherence to federal law and only states that “moral or political issues” may be discussed “from a religious perspective.” Harris is calling souls to the polls in a straight political speech. So even under Trump’s order, this would be a violation.

Putting aside any federal violation in such pitches, Trump’s desire to get the vote out through evangelical churches was widely denounced as an attack on the separation of Church and State. That was before McAuliffe ran into trouble in what was viewed as a reliably blue state that Biden won by a wide margin. Now the same media and legal figures are silent.

If this is indeed played in churches (as opposed to simply posted on internet sites), it does appear a premeditated and unambiguous violation of the federal law governing churches as non-for-profit institutions.

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