(RNS) — Earlier this month, the IRS announced it would not seek to remove the tax exemption of houses of worship that endorse political candidates, thereby making an apparent exception to the so-called Johnson Amendment, a 1954 provision of the tax code that bars nonprofit organizations from engaging in political activity.
The announcement came in the form of a consent decree proposed to a federal court in Texas in a lawsuit challenging the Johnson Amendment on religious liberty grounds. There’s no reason to think that the court will reject it. Why shouldn’t pastors, in obedience to their religious values, be able to tell their congregation whom to vote for (or against) with tax-liability impunity?
Americans United for Separation of Church and State issued a predictable denunciation and was in turn pooh-poohed by the National Catholic Reporter’s Michael Sean Winters as making much ado about nothing. Indeed, as the consent decree itself points out, the IRS has long made a practice of not enforcing the Johnson Amendment against houses of worship.
To be sure, a law may be useful without having to be enforced. It cannot be doubted that clergy throughout the land have raised the threat of losing nonprofit status to silence calls for partisan pulpiteering. That they’ll no longer be able to do so may, as the Texas Monthly pointed out, serve to deepen political polarization in our religious life.
Come what may, it’s important to recognize what the consent decree does and doesn’t do.
During his 2016 presidential campaign, Donald Trump seized upon the Johnson Amendment as a great evil and, in deference to the desires of a segment of his activist religious base, vowed to “totally destroy” it. Sure enough, during its mark-up of the 2017 tax-cut bill, the GOP-controlled House Ways and Means Committee exempted all nonprofits from the purview of the Johnson Amendment “solely because of the content of any statement” made in the “ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose.”
What this meant was that any nonprofit organization could support or oppose political candidates without losing its 501(c)(3) tax status, which allows individuals to make tax deductible contributions to nonprofits to support (or oppose) political candidates. The individual donors could even condition their support of a nonprofit on its support of (or opposition to) a particular candidate. Nonprofits do sometimes establish 501(c)(4) organizations to engage in such direct politicking, but any contributions to such organizations are not tax-deductible.
“No question it’s an end run about campaign finance reform,” the American Jewish Committee’s General Counsel Marc Stern told me at the time of the original Trump tax cut. “It will lead to all sorts of shenanigans.” Fortunately, the Senate refused to go along, and the Ways and Means Committee’s provision never made it into the final bill.
The current consent decree limits a non-profit’s permissible political activity to “(b)ona fide communications internal to a house of worship, between the house of worship and its congregation in connection with religious services through its usual channels of communication on matters of faith.” (Italics mine.)
Far from totally destroying the Johnson Amendment, the decree would interpret it in a way that maintains the ban on a house of worship publicly endorsing or opposing a candidate.
In fact, it would permit the IRS to do exactly what it did the last (and just about only) time it penalized a house of worship for violating the Johnson Amendment. That was four days before the 1992 election, when a non-denominational church in New York State, the Church at Pierce Creek, took out full-page ads in the Washington Times and USA Today opposing Bill Clinton’s candidacy for president of the United States.
The IRS proceeded to lift the church’s tax exemption, a decision upheld by federal district and appeals courts in Washington. If the IRS did likewise in a similar case, would the current Supreme Court follow suit and uphold its decision? That, notwithstanding the consent decree, must still be considered an open question.