It's not clear what Lyndon Johnson was thinking in 1954. The then-U.S. senator introduced an amendment to a bill that prevented some tax-exempt organizations, including churches, from engaging in political campaign activity. Congress adopted it without debate. Lawmakers later strengthened the ban. Courts have upheld it.
None of this means the statute makes sense. There is certainly a case to be made that free speech rights should not be tied to tax status for any organization. And Congress can certainly vote to change the law if it chooses.
But President Donald Trump is still figuring out how this "branches of government" idea works.
Last week he signed an executive order he said would free churches from restraints imposed by the law. Seeking to garner as much attention as possible, the signing was staged in the Rose Garden with activists, faith leaders and nuns. They were serenaded by a string quartet.
The order will "prevent the Johnson Amendment from interfering with your First Amendment rights," Trump declared.
Well, no it won't. The executive order does essentially nothing.
In fact, groups preparing to sue over what they expected the document to contain said there was no need after they saw the final version. The American Civil Liberties Union called the order "an elaborate photo-op with no discernible policy outcome." Even conservative groups recognized it as little more than a "gesture."
Then again, the Johnson Amendment is little more than a gesture. It is essentially meaningless because it is not enforced.
Some religious leaders have intentionally flouted the provision in law, trying to draw attention to themselves annually on "Pulpit Freedom Sunday." They tell their congregation which political candidates to support and face no consequences from the Internal Revenue Service.
"We record our sermons, as have many several thousands of pastors, and then send their sermons to the IRS in hopes of provoking a lawsuit. But we have not been successful," a California pastor told CNN last year.
The IRS could take action. It could revoke the preferential tax status of churches. But it doesn't. After being starved by Congress for several years, it doesn't have the staff. It also likely doesn't have the stomach for the certain political backlash. And the IRS may not even know some churches exist, as they are not required to apply for tax-exempt status and are generally not required to file annual forms with the agency.
A 2014 report from the Government Accountability Office noted budget cuts at the IRS have led to "a steady decrease in the number of charitable organizations examined." In 2011, the examination rate was 0.81 percent; in 2013, it fell to 0.71 percent, lower than the examination rate for other types of taxpayers, including individuals and corporations.
Translation: Pretty much anyone can open a "church," avoid taxation and engage in political activities with no fear of repercussions. And with pressure from the president to leave these entities alone, the IRS is even less likely to scrutinize them.
The question Trump should be asking: Why are churches exempt from taxation in the first place? That could spur the larger conversation this country needs to have about reforming the entire, antiquated federal statute on tax-exempt status. Use of the exemption has run amok.
About 1.6 million organizations, including about 400,000 religious entities, do not pay taxes. That drives up the federal deficit, hurts local governments and forces the rest of us to pay more to compensate. Among the activities our additional tax contributions support: politicking pastors who proudly and loudly violate federal law.
Washington policymakers should ensure everyone has freedom of speech, but revisit who gets freedom from taxation.
This editorial appeared in the May 11 edition of the Des Moines Register.