When it comes to the matter of houses of worship endorsing political candidates, President Donald J. Trump is out to make religious-right dreams come true.
The federal tax code currently prohibits all 501(c)(3) non-profits, including religious institutions, from using their resources to intervene in elections by endorsing or opposing candidates for public office. President Trump is wasting no time delivering on Candidate Trump’s campaign promise to do away with that long-standing prohibition.
Most Americans didn’t realize what he was talking about when he vowed to repeal the Johnson Amendment during his acceptance speech at the Republican National Convention in July.
“At this moment, I would like to thank the evangelical community who have been so good to me and so supportive,” Trump said. “You have so much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits.
“An amendment, pushed by Lyndon Johnson many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views,” Trump added. “I am going to work very hard to repeal that language and protect free speech for all Americans.”
African Americans who grew up in the church during the Civil Rights era may be surprised to learn it’s against the law for churches to endorse candidates or be involved in politicking. Political engagement is inextricably steeped in the history and culture of the Black church. In the past, the advocacy leaders in almost every Black community in the country was most likely a minister.
While many in the community have questioned why the advocacy role of the Black church has diminished over the years, may at least gain some solace in learning the Johnson Amendment. — Versus apathy — may have played some role in that change.
The Johnson amendment passed in 1954, but it took several decades to clarify and implement the requirements of the law.
Trump is correct. The origin of the pulpit politicking prohibition came from then U.S. Sen. Lyndon Johnson (D-Texas). Even though religious groups are some of the most vocal opponents of the Amendment today, it was originally about something else: communism.
When the measure was passed, McCarthyism was at its peak, and Johnson feared that right-wing groups, parading as charities, would attack his reelection campaign. Although the rule extended to religious groups, most historians agree; Johnson never specifically wanted to target religious groups.
Concerns with non-profits politicking was a long-standing by the time Johnson took it up. The legal limits around political activity for non-profit groups had been a troubling spot in relation to their charitable tax status from the inception of the federal-income-tax exemption for charitable organizations.
Congress first approved a tax deduction for donations to charitable organizations in 1917, but the boundaries around those organizations’ political activities weren’t exactly clear. In a 1930 decision, Slee v. Commissioner of Internal Revenue, a Second Circuit Court judge made those boundaries clearer: He ruled that the government doesn’t have an obligation to subsidize the political activity of non-profit groups; and people can write off donations to these groups, which include religious organizations, but not if the groups are engaging in “political agitation,” or lobbying.
In 1934, this rule officially became part of the tax code: “No substantial part of an organization’s activities” could involve “carrying on propaganda or otherwise attempting to influence legislation.” There were two problems with this rule. First, the word “substantial” is vague and confusing. “People found that standard difficult to meet because they couldn’t identify it—they couldn’t quantify it,” said Miriam Galston, a law professor at George Washington University. “The IRS never gave any clear or precise guidelines.”
Subsequent court decisions made this standard somewhat clearer: “Substantial” is somewhere between 5 and 20% of an organization’s operating budget and efforts, said Miriam Galston, a law professor at George Washington University.
The other problem was that lobbying isn’t the same as electioneering—a non-profit group like a church might not spend time and money trying to get a bill passed in Congress, but it might promote a candidate for office with flyers and buttons and speeches. The Johnson Amendment clarified that the ban extended to political activity: Non-profits, including religious groups, couldn’t support candidates for political office without losing their tax-exempt status. In 1987, Congress clarified that this means non-profits can’t oppose candidates, either.
Freedom of Speech
Most organizations that oppose the Johnson Amendment frame their objection in terms of violation of their rights to freedom of speech.
Dr. Jay Sekulow, Chief Counsel for the American Center of Law and Justice, a politically conservative, Christian-based, social activism organization, summarized the implications of the 1954 Johnson Amendment by calling it a “-year-old federal tax law that prevents religious leaders from truly exercising their constitutionally-protected free speech rights when they act in their official capacity as a pastor or head of a religious, tax-exempt organization.” The purpose of the IRS was “to collect revenue for the general treasury,” but this amendment has turned the organization into the “speech police, ”he continued.
In a statement to media. Americans United Executive Director Barry W. Lynn pointed out that the amendment bars only endorsement or opposition of candidates. Speaking out on issues is permitted.
The main question, said Alan Brownstein, a law professor at the University of California, Davis, is not whether religious groups and leaders should be able to express their views—it’s whether that activity should be subsidized by the government.
Lynn noted that the ban on partisan politicking encompasses many non-profit groups, religious and secular. The idea behind it, he said, is to ensure that the desirable benefit of tax exemption is awarded only to organizations that operate in the public interest, not partisan entities.
“Pastors can say whatever they want, as can anyone else,” he said. “The question is whether a tax-exempt institution can say whatever it wants and retain its tax-exempt status, and whether the pastor as an official can use his or her position in the tax-exempt institution to engage in electioneering.”
Right now, the IRS makes a clear distinction between non-profit groups—from charities and universities to certain private schools and houses of worship—and political organizations.
If the Johnson Amendment were repealed, pastors would be able to endorse candidates from the pulpit, which they’re currently not allowed to do by law. But it’s also true that a lot more money could possibly flow into politics via donations to churches and other religious organizations. That could mean religious groups would become much more powerful political forces in American politics.
The result, political donors might start directing more cash toward non-profits, since those donations would be tax deductible. If all of these changes were made, the biggest beneficiaries would likely be the wealthy. Tax-deductible donations only benefit people who take itemized deductions; people with high incomes are significantly more likely to do so.
What’s unclear about Trump’s promise to repeal the Johnson Amendment, though, is whether he’s only intending to push a repeal of the rule for religious organizations. A broad change to the provision would likely cause minor-level chaos within the U.S. political system: There would no longer be any meaningful difference between charitable groups and lobbying organizations.
The government would effectively be subsidizing the political activities of all schools, charities, churches, and scientific-research organizations. On the other hand, if Trump’s theoretical administration pushed for a repeal only for religious groups, legal challenges would almost certainly follow. “It would be a preference for religion against organizations that were not religious,” Galston said.
For those Americans who want more, not less, religious influence on American politics, the repeal of the Johnson Amendment is the perfect campaign promise: a guarantee of increased political power, greater freedom of speech, and more control over political dollars for groups that widely feel their electoral influence slipping.