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the law is the law except....

When the IRS announced two weeks ago that it would not enforce a section of federal law commonly called the Johnson Amendment, many clerics rejoiced. The Johnson Amendment — named for its author, then-Sen. Lyndon B. Johnson — strikes a bargain with charities. You accept tax-free dollars, you stay out of the political arena.

 

To Enforce the Laws Faithfully

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The amendment is the federal law, codified in the IRS Code at 501(c)(3), that permits the IRS to grant tax-exempt status to qualifying charities. The tax exemptions generally permit the charity to solicit and accept financial contributions using pre-tax dollars, and relieves them from paying taxes on the income collected thereby. In return, the charity agrees to refrain from engaging in or financing partisan politics.

Most colleges and universities have this status, and nearly all religious institutions do. In many cases, local and state governments will grant their own tax exemptions, which generally exempt charities from paying real estate taxes on their properties and from collecting sales taxes on any goods that they sell.

Protestant ministers have often bemoaned the Amendment because they have longed for the ability to endorse candidates for public office publicly. Catholic priests have sought this as well, though the more traditional ones understand that recommending a political candidate from the pulpit has negative implications in canon law. Indeed, the United States Conference of Catholic Bishops — the governing body for American priests — recently indicated that it will adhere to the traditional understanding of the amendment, which means no public political endorsements.

What became of the Johnson Amendment? Since it is a federal statute, can the IRS abrogate it? Can the president pick and choose which laws to enforce and which parts of the laws to go unenforced?

Here is the backstory.

When James Madison was the scrivener at the Constitutional Convention in Philadelphia in 1787, he crafted the idea of the separation of powers. The separation mandates that only Congress can write the laws, only the president and those whom he hires to work for him can enforce the laws, and only the judiciary can decide what the laws mean and if they conform to the Constitution.

The flip side of the separation of powers is twofold. First, the separation prohibits any of the three branches from performing the core duties of either of the other two, whether by stealth, force or even permission. Core duties are those articulated in the Constitution or unambiguously derived from it. Thus, only Congress can impose taxes, as that core duty is assigned to it by the Constitution. This is essentially the reason that President Donald Trump’s tariffs have been found unconstitutional; a tariff is a tax, and only Congress can impose taxes.

The second flip side of the separation is the presumption that each branch will in fact do what the Constitution charges it with doing: Congress will write the laws, and the president will enforce them as they are written, and the courts will interpret them.

What happens if the president chooses to enforce laws only against certain persons but not against others arguably covered by the law?

That’s what happened with the partial abrogation of the Johnson Amendment by the IRS. The IRS works for the Secretary of the Treasury, who in turn works for the president. They are all part of the executive branch machinery charged with enforcing federal laws.

Now, back to Madison in Philadelphia. He had a healthy skepticism and fear of executive power. He and his generation had lived during the most oppressive colonial times in which British soldiers and government agents enforced the will of King George III upon them. And, of course, he and his generation had waged a bloody war against the king, as a result of which the 13 colonies seceded from Britain.

Madison feared presidents being disingenuous and effectively doing whatever they wanted to do with federal laws. He knew that presidents would be tempted to pick and choose which laws to enforce and which to disregard. He warned against the selective enforcement of federal statutes, the effect of which is to nullify federal laws for certain persons.

In order to prevent this, he insisted that the presidential oath of office be included in the Constitution and that all presidents swear in the oath to enforce the laws FAITHFULLY. No such requirement of faithfulness is textually imposed upon the Congress or the courts.

Madison also sought to prevent the selective enforcement of laws via the Fifth Amendment’s imposition of equal protection of the laws upon the federal government.

Nevertheless, presidents since Thomas Jefferson — even Madison himself — have succumbed to the temptation of choosing which laws to enforce and which to ignore.

Two weeks ago, Trump’s IRS publicly announced the upcoming selective enforcement of the Johnson Amendment. Selective enforcement is profoundly unconstitutional, as it dilutes the legislation Congress has enacted, permits the president subjectively to reward friends and burden enemies, and defies the presidential oath to enforce laws faithfully.

Now the president can decide against whom to enforce the amendment by the public political speech of the 501(c)(3) charities. This, in turn, involves the government evaluating the content of speech — and that is prohibited by the First Amendment.

What’s going on here?

We are witnessing an erosion of democracy when the executive branch can be unfaithful about enforcing laws. Yet, if we take a step back from the Johnson Amendment, we see what happens when the government presumes it has a prior claim on our income greater than we do and then conditions its claims in order to induce the behavior it wishes.

Stated differently, Jefferson argued that the only moral commercial transactions are those which are bilaterally voluntary — by which he meant that income taxation is theft. You want a service from the government, you pay for it. Otherwise leave our income alone. But taxation with conditions of behavior attached is worse than theft. It is tyranny.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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https://ronpaulinstitute.org/to-enforce-the-laws-faithfully/

 

YOURDEMOCRACY.NET RECORDS HISTORY AS IT SHOULD BE — NOT AS THE WESTERN MEDIA WRONGLY REPORTS IT.

 

         Gus Leonisky

         POLITICAL CARTOONIST SINCE 1951.

not just charities....

 

‘The Current Commercial System Will Always Fail Democracy’:
CounterSpin interview with Victor Pickard on Paramount settlement

JANINE JACKSON

 

Janine Jackson: Faced with a groundless lawsuit claiming that an interview with Kamala Harris amounted to election interference in favor of Democrats, CBS News’ parent company, Paramount, could have struck a symbolic blow for press freedom by saying, “No,” pointing to any number of legal arguments, starting with the First (for a reason) Amendment.

But Paramount isn’t a journalistic institution. It’s a business with media holdings, and controlling shareholder Shari Redstone was in the middle of doing business, trying to sell the corporation to another Hollywood studio, a move that, perhaps quaintly, requires government approval. That now means approval of thisgovernment.

And so here we are, with a recent $16 million deal, which is being widely denounced as an outright bribe, and a cold wind blowing through every newsroom.

And yet here we are. The Paramount settlement, says Victor Pickard, is, yes, a stunning display of bribery, greed and cowardice. But we need to understand, it’s also a symptom of a deep structural rot in our media today, a system in which profit trumps democracy at every turn.

Victor Pickard is a professor of media policy and political economy at the University of Pennsylvania’s Annenberg School for Communication, where he co-directs the Media Inequality and Change Center. He’s the author, most recently, of Democracy Without Journalism?: Confronting the Misinformation Society from Oxford University Press. He joins us now by phone. Welcome back to CounterSpin, Victor Pickard.

Victor Pickard: It’s great to be back on the show, Janine.

JJ: Well, I hear that Paramount‘s market value has dropped since Shari Redstone threw press independence on the fire to warm shareholders’ hands. It’s almost as if folks thought it wasn’t a valuable journalistic institution.

 

I want to launch you into the bigger picture of which this is emblematic, but I first want to insert: Shari Redstone inherited Paramount from her father, Sumner Redstone, who, while some of us were working to show there was a conflict, declared it openly.

In 2004, then-head of CBS and ViacomSumner Redstone stated at a corporate leader confab that he didn’t want to denigrate then–Democratic presidential candidate John Kerry, but

from a Viacom standpoint, the election of a Republican administration is a better deal, because the Republican administration has stood for many things we believe in, deregulation and so on. The Democrats are not bad people, but from a Viacom standpoint, we believe the election of a Republican administration is better for our company.

And, later, CBS head Les Moonves—CounterSpin listeners will have heard me say many times—declared laughingly, “Donald Trump is bad for America, but he’s good for CBS, so let’s do it.”

So the structural conflict you’re describing, it’s not a theory. It’s not the stuff of smoke-filled rooms. It’s out there for everyone to see, every day in every way. So the questions have to do with, once we diagnose this problem, what do we do about it?

VP: Thank you for opening up with that softball question. I mean, that is the main problem before us, and everything you just said leading up to this question really lays out that this is a systemic problem that we’re facing, and it requires a systemic fix. It’s not just a case of a few bad apples, or a handful of bad corporations and perhaps a bad journalist, even, but it really is a systemic structural problem. And so we really need to move our frame of analysis from just condemning the latest media malfeasance to really condemning the entire hypercommercialized media system in which we are all immersed, and so clearly serves only commercial values and not democratic values.

So the first step, of course, would be to decommercialize our media, much easier said than done, but that’s something we need to place on our horizon. And not only that, we also need to radically democratize our media, from root to branch, and that means bringing it back down to the local level, making sure that our media are owned and controlled by the public. Even our public media, our so-called public media, aren’t actually owned by the people.

So this is something that we need to work towards. It won’t happen tomorrow, but it’s something we need to start thinking about now.

JJ: I love the idea of a long-term and a short-term plan, and eyes on the prize. So let’s go back to that. It’s not that we’re going to change things legislatively or politically tomorrow, but there are things on the ground locally. There are models we can build on, yeah?

VP: That’s absolutely true. There’s a number of models that exist today, that have existed in our history and that exist around the world, and we really should be looking at some of those to expand our current imagination about what’s possible in the future. Obviously, we have some great independent local media, and those outlets, those institutions, we should be supporting in any way that we can, through donations, subscriptions, whatever we can, to help them. They’re all struggling, like all local media are right now.

We also, even though I made a sort of snarky comment about our public media a moment ago, I think we do need to look to, as I say, save our public media so that we can change it. As we know, the meager funds that we allocate to public media are currently on the chopping block. It comes out to about a $1.58 per person per year in this country, which is literally off the chart compared to most democratic countries around the world. So we need to look at how we can salvage that, but also, again, expand on it, and build, restructure our public media, so that it’s not just public in name but actually publicly owned.

There are other things that we could be doing, but we just have to start with recognizing that the current commercial system is failing democracy, and will always fail democracy.

JJ: When you talk about public media, and this is a thing, of course, folks are being encouraged to think about it now as “ideological” institutions. First of all, and you’ve said it, but they don’t get a lot of government support to begin with.

But at the same time, progressives, we’ve had plenty of complaints about public broadcasting as it exists in this country. It had a beautiful ideal. It had a beautiful beginning. It hasn’t fulfilled that role.

We have complaints about it, but the complaints that we’re now hearing don’t have anything to do with the complaints that we have about it. So the idea of saving public media might land weird to some CounterSpin listeners, but there’s a reason that we need to keep that venue open.

VP: Absolutely. I mean, it is an ideal, just like democracy itself is an ideal, something that we have yet to actually achieve, but it’s something we can’t give up on just because the current iteration of this model that we have in the US, which is a kind of strange one, again, compared to other public media models around the world, it’s actually a misnomer. It’s mostly supported by private capital.

But if we were to actually fund it in accordance with global norms, we could have a very robust public media system that was not dependent on corporate sponsorships, that was not catering to higher socioeconomic groups, that, again, could actually spend more time engaging with and devoting programming for local communities.

So this is something that’s not inevitable. Like our entire media system, there was nothing inevitable with how we designed it. We need to understand the political economic structures that produce the kind of media that we’re constantly critiquing in order to change it, to create an entirely different kind of media system that’s driven by a different and democratic logic.

JJ: Let me just draw you out on that. We spoke last year, and I would refer interested people to that conversation, about separating capitalism and journalism, and talking about different ways of financing media in the service of the public.

And we understand complaints about “state media.” We hear all of that, and any kind of funding structure should be transparent, and we should talk about it.

But I want to ask you, finally, there are creative policy responses going on, and it’s not about kicking the final answers down the field; it’s really just about making a road while we walk it, and making examples of things, so that we can see that, yeah, they work, and they can move us towards a bigger vision.

VP: Absolutely. And as you already suggested, state media and public media are not the same thing. That we publicly subsidize media doesn’t mean it immediately has to become a mouthpiece for the state or the government.

And, indeed, government is always involved in our media. It’s a question of how it should be involved, whether it’s to serve corporate interests or public interests.

I think we can look to what’s happening at the state level, for example, in New Jersey, they’ve long had an Information Consortium network that’s focused on subsidizing various local journalistic initiatives. And it’s a proof of concept of how the state can make these public investments towards publicly accountable media. And we’re starting to see that in many states across the country.

A lot of experiments, some will survive, some won’t. The important thing is that we need to create these non-market means of support for the media that we need. I think that ideal of separating journalism and capitalism, which was always a match made in Hell, we need to find a way to do that, again, to be on our political horizon for the future.

JJ: Well, I said that was my last question, but I want to ask you another one, because I think a mistake that folks make about FAIR, and possibly about you, is that we’re anti-journalism per se. But we are emphatically pro–good journalism that’s not public relations for power. It’s because we believe in the power of journalism that we are so concerned about these structural constraints.

VP: Exactly. I couldn’t agree more with that statement. And I think much of what we’re talking about is really trying to figure out the structures that would allow journalists to be journalists. Most journalists don’t go into the profession, they don’t follow the craft, to become rich, or to become mouthpieces of the already powerful. I think it’s generally a noble calling, and we just need to create the institutions and the structures that can allow them to be the great journalist they want to be.

JJ: All right, then. Victor Pickard is professor of media policy and political economy at the University of Pennsylvania’s Annenberg School for Communication. He co-directs the Media Inequality and Change Center, and his most recent book is called Democracy Without Journalism?. Victor Pickard, thank you so much for joining us this week on CounterSpin.

VP: Thanks so much for having me, Janine.

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https://fair.org/home/the-current-commercial-system-will-always-fail-democracy/

 

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YOURDEMOCRACY.NET RECORDS HISTORY AS IT SHOULD BE — NOT AS THE WESTERN MEDIA WRONGLY REPORTS IT.

 

         Gus Leonisky

         POLITICAL CARTOONIST SINCE 1951.