The Johnson Amendment

February 24th, 2017

Targeting the Johnson Amendment

During remarks at the National Prayer Breakfast on February 2, President Donald Trump pointed to “the right to worship according to our own beliefs” as an important freedom in the United States. “That is why,” he said, “I will get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”

The President was referring to a federal tax law he pledged to eliminate during his campaign. As a law, its elimination would require congressional action. At last July’s Republican National Convention, Trump told “the evangelical and religious community” he would strive to repeal the law, which he claimed “[prevents] you from speaking your minds from your own pulpits.” He said, “I am going to work very hard to repeal that language and to protect free speech for all Americans.”

Some preachers welcome Trump’s promise. The Reverend Michael McCarron, a Roman Catholic priest in Virginia, told a local reporter, “It would be good to repeal [the law], because I think it’s discriminatory against a particular group.” Others disagree, including the Reverend Erin Wathen, a Disciples of Christ pastor in Kansas, who told a local reporter, “If we start rolling some of those boundaries back then there are a lot of other things that could follow.”

Content and background

The Johnson Amendment restricts political activity by organizations that are tax-exempt under section 501(c)(3) of the Internal Revenue Code, a status churches automatically receive; other nonprofits must apply for it. These organizations cannot “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.”

The IRS’s website specifies, “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” and may be punishable by the imposition of taxes or the denial or revocation of tax-exempt status.

The code’s provision doesn’t discriminate among nonprofits. It doesn’t single out churches or religious groups. In 1954, Senator Lyndon B. Johnson introduced the amendment because, as the Associated Press characterized him, “he was livid that a few nonprofit groups attacked him as a communist in a Senate campaign.”

Congress passed the amendment, and President Dwight D. Eisenhower signed it into law with, apparently, little to no controversy. “There is no record of the debate, if any,” law professor Michael Hone observed in a 1989 issue of Case Western Law Review. “The logical argument favoring such an amendment is that those corporations qualifying for the . . . tax subsidy should not be permitted to directly or indirectly use that subsidy to support candidates for office.”

Until recent years, the provision remained largely unchallenged and rarely enforced. Since 2008, the Alliance Defending Freedom (ADF) — a legal nonprofit that, in its words, “advocates for the right of people to freely live out their faith” — has encouraged pastors to preach about political topics and endorse candidates as part of an annual “Pulpit Freedom Sunday,” then send recordings of their sermons to the IRS. The ADF claims “the IRS can use the Johnson Amendment to tell pastors what they can and cannot preach” and wants a test case in which the regulation could be ruled unconstitutional.

So far, no test case has emerged. In 2008, the IRS announced it would review one Minnesota church’s tax-exempt status after its pastor endorsed Senator John McCain from the pulpit; however, the IRS closed the investigation the following year due to an unspecified procedural issue. Some pastors who send tapes to the IRS receive form letters stating the information will be reviewed. Others receive no response at all. As Erik W. Stanley, the ADF’s senior counsel, states, “The IRS seems to have simply ignored Pulpit Freedom Sunday.”

Arguments against the amendment

Since its break from Great Britain and its refusal to establish a national church, the United States has practiced legal separation of church and state. The Johnson Amendment has been, as The New York Times called it, “one of the brightest lines” in that separation. But its opponents claim it infringes upon freedoms protected by the U.S. Constitution’s First Amendment.

In this view, the Johnson Amendment prohibits political speech and action that necessarily belong to free religious practice. One ADF website points to what it calls America’s long history of preachers speaking “freely and boldly from their pulpit about the issues of the day, including candidates running for office” and asks, “Why should the IRS have control of your pulpit? . . . A pastor’s pulpit should be accountable to God alone.”

To its critics, the Johnson Amendment censors sermons and prevents congregations from taking political action incumbent upon them as communities of faith. Michelle Terry of the American Center for Law and Justice (a “doing business as” name for Christian Advocates Serving Evangelism) argues that U.S. law best upholds church-state separation “by allowing churches to fulfill one of the purposes for which they were created — to be involved in moral issues of the day and be a community for like-minded individuals.”

Arguments for the amendment

Supporters of the Johnson Amendment insist it only minimally restricts religious speech and practice. “We have a dazzling amount of freedom,” writes the Reverend Barry W. Lynn, executive director of Americans United for Separation of Church and State, in the Los Angeles Times, “to express the most controversial viewpoints imaginable from American pulpits. We just can’t have sermons converted into political advertisements for candidates.”

Supporters remind critics that the law treats churches no differently from secular nonprofits and doesn’t involve the government in censoring sermons. Robert Tuttle, professor of law and religion at George Washington University, told Pew Research that the IRS “does not need to evaluate a sermon’s theological merit to determine whether the sermon promotes a politician.”

Some observers also believe the law’s prohibition of tax-deductible contributions to candidates promotes transparency in campaign financing. Attorney Andrew Seidel of the Freedom From Religion Foundation expressed concern in a newspaper interview that the law’s repeal might “turn houses of worship into political action committees.” Unlike secular nonprofits, churches need not report to the IRS the sources and uses of donations received. Without the Johnson Amendment, Seidel argues, “there would essentially be this informational and financial black hole for mega-donors to give money to and funnel to politicians tax-free, and then write it off.”

Theological considerations

Christians believe God rules the whole world and the whole of life. There’s no dimension of individual existence or of society over which God is not sovereign, including the political. Christians also believe Jesus commands the church to bear witness to God’s rule. But Christians disagree whether supporting and opposing specific political candidates faithfully bears that witness.

Many who encourage repeal of the Johnson Amendment see themselves standing in the tradition of the apostles, whose testimony to Jesus amazed opponents. Tony Perkins, national spokesman for Pulpit Freedom Sunday, quotes Peter, “We must obey God rather than men” (Acts 5:29, RSV), in a video encouraging preachers to participate. “Your God-given right as affirmed in the First Amendment trumps any rule the IRS can use to try to silence you,” says Perkins.

Other Christians highlight how churches can and do speak and act politically within the law, and they ask whether endorsing candidates advances Christian witness and mission. In a recent blog entry, Branson Parler, a theology professor at Kuyper College, argues that making political endorsements distracts the church from its true purpose and nature. “If churches and pastors embraced this move,” he writes, “we would sacrifice our gospel unity on the altar of political power. . . . The more we proclaim our loyalty to earthly rulers, the less we bear witness to our true King.”

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