Columns Government & Politics Mark Silk: Spiritual Politics Opinion

Killing the Johnson Amendment is about lots more than religion

Boxes of letters from clergy who are opposed to repealing the Johnson Amendment, a federal law that bars tax-exempt houses of worship from engaging in partisan politicking, prior to delivery on Capitol Hill. Photo courtesy of Americans United

(RNS) — To listen to both sides, the effort to do away with the Johnson Amendment is all about religion. “Pulpit freedom!” cry the proponents. “Religious politicization!” the opponents cry back.

But the hue and cry has obscured the pervasiveness and insidiousness of what’s really going on. The tax bill passed by the House of Representatives scuttles the Johnson Amendment in a way that would change the landscape for the entire nonprofit world.

The bill’s original language was narrowly tailored to permit a pastor to include a political endorsement in a sermon if she so wished. It was actually about pulpit freedom (to politick) — and, in truth, of minor consequence.

But during the Ways and Means Committee markup, the language was amended so that electioneering “in the ordinary course of the organization’s regular and customary activities” became permitted for all 501(c)(3)s. Which means that those nonprofits would now be able to endorse or oppose candidates for public office without sacrificing their ability to receive tax-deductible contributions. 

While professional publications like The Chronicle of Philanthropy have noted the significance of what happened, the general news media — including The New York Times — have missed the boat. They shouldn’t have.

The new language comes from bills introduced by House Majority Whip Steve Scalise, R-La., and Sen. James Lankford, R-Okla., back on Feb. 1. It is a perfect vehicle for the further polarization of American society on partisan lines. Dollars to donuts it was intended to be in the House bill all along. 

To be sure, the bill states that 501(c)(3) electioneering must result “in the organization incurring not more than de minimis incremental expenses.” So direct monetary contributions to candidates would be disallowed, as would expenditures dedicated solely to canvassing and phone banking on their behalf.

But electioneering in the course of “regular and customary” issue advocacy and solicitation of support would be just fine — nothing more than de minimis incremental expenses there.

Consider the case of the Christian Coalition, whose stock in trade was handing out voter guides in evangelical churches around the country. In line with IRS nonprofit rules, these guides looked as if they were solely concerned with where candidates stood on the particular issues of concern to the Christian Coalition.

However, in 1999 the IRS turned down the organization’s long-standing application for tax-exempt status because the guides were designed to favor the GOP. For example, if a Democratic candidate happened to be anti-abortion, the guide would pick out some irrelevant procedural vote in order to portray him as pro-choice — thus effectively violating the Johnson Amendment.

The Christian Coalition is no longer with us, but its former executive director, Ralph Reed, now runs a very similar organization called the Faith and Freedom Coalition. Its stock in trade is also voter guides, and its politics are very much with the Trump wing of the GOP.

Faith and Freedom is a 501(c)(4), which is to say it is ineligible for tax-free donations. Under the House tax bill, it could become eligible for such donations as a 501(c)(3). Likewise would any nonprofit that supports or opposes candidates in the course of its regular and customary business.

Tax-deductible electioneering is what Republican opponents of the Johnson Amendment want to enable. Do you?

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

55 Comments

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  • I will wager that the opponents of the repeal of the Johnson Amendment are almost entirely pro-abortion clergy who want to keep pro-life clergy intimidated and muzzled.

  • In response to the question at the end: Yes. Mr. Silk has noted the proposed changes are more broad than popularly understood, but makes no significant attempt to say why it is bad. Less government regulation of free speech and less interference with how and where people donate money are both goods. Like any goods, they can be abused, but that is hardly justification for the government to criminalize speech.

  • Regardless of who is sitting in the White House, we need the IRS to go back to doing taxes instead of doing censorship.

    Conservative preachers didn’t need Obama’s IRS getting all overzealous on them, and I’m sure the liberal preachers wouldn’t want Trump’s IRS getting all overzealous on them.

    Get rid of the Johnson Amendment, and all sides will be safe again.

  • No one wants to criminalize speech. And only religious dominionists want the churches to receive all of the political money they can.

  • I’m against the repeal because Christianity is already a tax exempt, profit focused industry in this country. Why should it be given more special privilege to become political action committees for the highest and most corrupt bidder? My, you Christians sure are a greedy lot.

  • Repealing this amendment will subject all church goes to unsolicited campaign speeches from a pulpit for hire. It happened during the mid 19th century and repealing this will opened the door to vote buying, influence peddling and all sorts of chicanery. I don’t want to see a Ralph Reed, Mike Huckabee, Jerry Falwell, Robert Jeffress lead Tammany Hall.
    Churches will have to hire extra staff to make sure tithe money doesn’t become fungible due to coat tail riding preachers harboring dreams of political power.

  • “Conservative preachers didn’t need Obama’s IRS getting all overzealous on them” When did that happen?!

  • I doubt it. The amendment is not enforced as it is (since everyone knows what will happen should it go all the way to the SCOTUS) and is routinely and deliberately violated, and none of the above has happened yet.

  • Freedom from taxation wasn’t explicit in the Constitution. The Supreme Court only granted an exemption in Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), and then tended to limit that in matters of policy — see Jones University v. United States, 461 U.S. 574 (1974) — or to require payment of other taxes, e.g., sales taxes for merchandise, e.g., Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990).

    So, what SCOTUS giveth, SCOTUS can taketh away.

  • One scenario would be where, with this broadened bill, all 501(c)(3)s could become sluices of political money, not just endorsements, and that would include religious organizations. My question then is whether these organizations would next go to the courts saying that having to file Federal Elections Commissions campaign-finance reports would be an infringement of their free exercise of religion, in the same way some groups don’t have to file IRS Form 990s.

  • As a liberal Catholic, I support repeal of the Johnson Amendment. It’s time for each tax-paying person and institutional supporter to take responsibility for his or her own beliefs, opinions, and actions. If my pastor, for instance, uses the pulpit or a parish forum to oppose same-sex adoption or to endorse a political candidate with whom I disagree, I can decide to speak out in opposition and to withhold my financial support to my parish. I can encourage fellow Catholics to do the same. This approach may be messy, but at least I’m behaving as an adult. Vatican II acknowledged the truth that God works among everyone, even non-Christians. Whether houses of worship should or should not pay taxes is a different matter, but we need to untangle the speech-tax “ball of wax”. Keep it simple: Encourage adults to behave as adults, and remember that not to decide is itself a decision. Let the proverbial “chips” fall where they may.

  • Religion is beside the point. It boils down to this: more dark money in politics. Under the guise of religion or ANY non-profit, money will be funneled to candidates without any requirement of identifying the giver. And it will be tax deductible. That’s what this is about.

  • You are not seeing this for what it is. This will allow people to give to religious organizations AND ANY NONPROFIT, and have that money go to support a candidate. It is about allowing more dark money into politics, because the giver will not be identified. That’s the reason the Republicans are excited to do this — their enthusiasm has nothing to do with religious liberty. Their enthusiasm has to do with getting undisclosed tax-exempt contributions to their campaigns. It won’t just be your beloved Catholic church. It will be fly by night not for profits — anything — that can provide cover for any individual or group who wants to give to a candidate, not be identified, and get a tax write-off. It stinks.

    And by the way, your pastor can say whatever he wants about an issue. The Johnson amendment only prohibited his right to endorse a specific candidate.

  • Really. So you don’t care who gives millions of dollars to politicians. Because that’s what this means. A billionaire can now buy the policies he likes, and no one will know who paid off that politician. Oh, and it will be tax exempt too! We’ll see a thousand new not for profits and religious organizations which can raise money, (tax exempt) and never have to declare where that money goes. That is what this is actually about. All the talk about religion and free speech is window dressing. What politicians want is more dark money.

  • This would already be the case. You nailed it — overnight, we might see thousands of not-for profits and so-called religious organizations spring up that are nothing more than ways to give untraceable money to politicians. (And the money will be tax deductible too!)

  • I suspect the irony of the situation, if the Johnson amendment is repealed, will be that pastors of mainstream churches will have little difficulty resisting requests by congregation members, but that evangelical churches will be badly split.

    In any case, of course, no group thast enjoys a 501(c)3 exemption should be allowed to engage in politicking.

  • The idea that the Catholic church would listen to any sheeple, any mere member of the congregation who is not a big donor, is very laughable. The RCC–as an organization– is so stupid that it has extraordinary difficulty understanding human behavior, understanding what is right and what is wrong, and how efforts to cover-up will always backfire.

  • It is well-documented that a very wide variety of pastors of all views want to keep the Johnson Amendment in place. Your comment is in so many ways typical of lievangelicals.

  • Paying taxes is not an abridgment of free speech or free exercise of religion. When a church becomes a re election committee it ceases the functions which justified its tax exemption. They become like any other PAC doing the same thing.

    You are not talking about free speech, you are demanding a privilege to flood political campaigns with dark money and chill activities of non religious political organizations.

  • There is no censorship involved. Clergy can say anything they want. Nobody cares. It’s when they throw money, manpower and resources to political actions that it gets any notice.

  • 2012. Google. Happened on Obama’s watch. Billy Graham was the target, even though he mentioned NO specific candidates or political parties.

    I mention this incident every other month or so in this forum. Obama
    iRS, Trump IRS, we don’t need anybody’s IRS trying to do censorship on preachers.

    You support the First Amendment? Then repeal the Johnson Amendment.

    P.S. If you guys don’t support the First Amendment, please call Immigration and have yourself deported. North Korea will do nicely.

  • “It was actually about pulpit freedom (to politick) — and, in truth, of minor consequence.”

    Considering the amount of control religious leaders have over their followers this simply isn’t true. 40% of homeless youth are LGBT – most because their conservative Christian parents kicked them out of their home as young as 13. A religious leader that can induce a person to abandon their own child like that can induce them to do just about anything. I’d hardly call telling those people “Vote for any Democrat and you risk your eternal soul to an eternity in Hell” as being of minor consequence, given that people *actually* believe it.

    But beyond this, churches are the only non-profit that do not have to provide the IRS & the public with financial transparency via filings of money in & money out. They are fast becoming the perfect vehicle to move massive amounts of money into political campaigns, but because they are allowed to be completely opaque, they are also the perfect legal vehicle for laundering money or breaking the audit trail of political funding. And not coincidentally, they are overwhelmingly conservative.

  • Oh I have used Google. Also know how the IRS works. So that is why the initial comment I replied to still remains false. If the incident is so well known, one would think it would actually come up on google fairly easily.

  • And you are wrong every time you mention it. The IRS’ job is to make sure that 501(c)(3) is not promoting politics, tax free. Both conservative and liberal groups were looked at, as they always are, and there was not one conservative organization that lost their 501(c)(3) designation. There were several liberal groups did. But truth doesn’t fit your narrative, so you don’t use all of it, only the tiny fraction that conservative groups were looked at, while ignoring the rest.

  • Also, the last time a church lost its tax exempt status due to campaigning violations was in 1992. So even with the blatant display of aggressive campaigning for years (Pulpit Sunday), the IRS has not revoke tax exempt status of those churches under Obama. Interesting huh?

  • Takes less than 20 seconds to Google it, Etranger. Like ChristianPost’s article of May 15, 2013 (snippets):

    “In light of what the IRS admitted to on Friday, May 10, 2013, and subsequent revelations from other sources, I do not believe that the IRS audit of our two organizations last year was a coincidence – or justifiable,” wrote (Franklin) Graham.

    “I am bringing this to your attention because I believe that someone in the Administration was targeting and attempting to intimidate us. This is morally wrong and unethical – indeed some would call it ‘un-American.'”

    …Last week, the Internal Revenue Service acknowledged that it had targeted conservative organizations applying for tax exemption under section 501(c)4, or the “social welfare” classification.

    https://www.christianpost.com/news/franklin-graham-irs-targeted-samaritans-purse-billy-graham-evangelistic-association-95926/

  • Ah okay – I thought we were talking about churches being targeted. You are changing the conversation completely. Try again? 🙂

  • See response to Etranger,
    especially the ChristianPost snippet,
    especially the part where the IRS fessed up to their crimes.

  • The term “pro-abortion” reveals a lot about the individual using it. For starters, it tells others that such a person thinks in “either/or” terms– a fundamental mistake of thinking. It tells us as well that such a person is not a clear thinker, and is very judgemental…hmm, what does Jesus say about being judgemental?

    And, Mr. McGowan, would you care to elaborate on how those who want to keep the Johnson amendment seek to muzzle and intimidate “pro life” (what a lie!) clergy? Those pastors who wish to speak out against abortion can do so now, without fear of losing their tax exemption.

  • Actually, you brought up an interesting law article. It essentially shows that, (completely aside from the fascist craziness of Obama’s IRS), there’s a serious, Johnson-based, censorship-via-fear, IRS mess brewing anyway.

    “(The campaigning) prohibition affects the real-world activities of churches, even as they do not know its constitutional status. On a regular basis, churches must weigh what they wish to say against the consequences of saying it.

    “Until the IRS enforces the prohibition, and the courts definitively rule on the constitutionality of the campaigning prohibition, churches that feel a calling to act in the political sphere must act without knowing whether the campaigning prohibition is constitutional or not.”

    “Churches are stuck in limbo until the IRS enforces the campaigning prohibition against churches, knowing both that the IRS does not enforce the prohibition, but that it could.”

    Of course, simply repealing the Johnson Amendment might help resolve the situation.

  • Mike Huckabee doesn’t need to lead Tammany Hall. Mike Huckabee needs to lead The White House. Go Huckabee!!

  • ALL preachers have First Amendment rights, and I support them. But if they want to endorse a political candidate, they are not allowed to have a 501(c)3 exemption.

    Umm. remind me, doesn’t Jesus say something about “Render unto Caesar…”??

    And you mention BillyBob Graham. Is that the same BillyBob Graham who’s a Jew hater, a liar about how much he helped MLK Jr, and a guy who was eager to suck up to TrickyDick Nixon?

  • I left the Church of Rome almost eleven years ago because of Pope Benedict’s aggressive efforts to court reactionary/right-wing Catholics and continue JPII’s reversing course on the progressive direction set by the Second Vatican Council. I support same-sex marriage and women’s ordination. I approve of abortion when it’s necessary to save the mother’s life. I’ve no problem with artificial birth control. I think the institutional church has lost relevance (or is close to doing so) for most Catholics. The “priests on pedestals” mentality has cost Catholics untold sexual, financial, and other harm. We are witnessing the results of church rules that have historically elevated the ordained and subordinated the laity — at the expense of the laity. As much as I like the current pope’s efforts to promote the Gospel including its stress on mercy, I doubt that Francis can convince most disaffected Catholics to return to the church.

  • I understand and appreciate your concerns. If the proposed legislation is signed by Trump into law, I am hoping that enough voters will be sickened by its provisions and return the Democratic party to majority status. We need a government of, by, and for ALL the people, not just the very rich. At what point will enough ordinary folks be able to “turn the tide” on the crap we see on Capitol Hill?

  • I am an agnostic of many decades’ standing. For a long time I’ve thought the RCC is a very dangerous, very dishonest organization, for many of the reasons you mention.

    Nevertheless, I am impressed by Francis–by his honesty, his integrity, his apparent intention to promote the ideas that Jesus advocated (as I understand those ideas).

    I know lots of faithful catholics who I think would describe themselves as you describe yourself. My hunch is that lots of other adherents to this church want to be told what and how to think, and of course don’t want anyone raising any ideas that reflect poorly on the RCC hierarchy in any way.

  • I suspect Catholics remaining in the Church of Rome fall into one or more of three categories:

    a. FEAR of doctrinal and other change

    b. Indifference to church controversy (indifference = opposite of love)

    c. Desire to “keep the peace”, not “rock the boat”

    Thank you.

  • My prediction: thousands of “churches” will be formed and granted 501(c)(3) status that are nothing more than fronts to funnel campaign money to candidates. A wealthy person (or persons) will form a “church” and funnel millions of dollars to their favored candidate. There won’t actually be any charitable work and the word “church” will become a joke.

  • The fact is that some non-profit organizations are political and get away with it, while others are not and are afraid to try. There are two ways to equalize this disparity: either enforce strict non-political rules on all non-profits or explicitly allow all non-profits to express their political opinions. The former would be tyrannical so the latter is the far better option.

  • Obviously you’ve never seen or been in meetings at a church and what expenses there are consistently to pay a pastor give help to others and keep a roof.you pidgeion hole all of us a brushstrokes as if one size fits all. Give it a break you just hate God.bottom line

  • The Johnson Amendment keeps church and state separate which is in harmony with what Jesus said in Matthew 22:21 – “Render to Caesar the things that are Caesar’s; and to God the things that are God’s.” The two are to remain separate. It is also in harmony with our constitution. Giving the church back it’s voice by killing the Johnson Amendment will only bring about a time of trouble such as there never was since there was a nation – Daniel 12:1. When church and state come together, persecution always follows. If we forget the past we are bound to repeat it. Look at the Dark Ages to see what happens when the church controls the state. Millions of Christians were murdered because they chose to stand on the Word of God and not on the word of man. The Bible predicted this would happen again in the last days. We are seeing prophecy being fulfilled before our very eyes. A time is coming and is right upon us where God’s true people will be forced to worship contrary to the commandments of God. That can only happen when church and state come back together. Revelation 13 depicts this. Look at the stories in the book of Daniel. History will repeat – Eccl. 1:9. Read The National Sunday Law book here http://www.anym.org/pdf/National_Sunday_Law.pdf. Your eyes will be opened.

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