On Thursday, the Senate parliamentarian blocked language in the tax bill ensuring that the Johnson Amendment remains the law of the land.
The parliamentarian determined the inclusion of the repeal did not meet Senate rules that require elements of the tax bill to have something to do with the budget.
The Johnson Amendment is a 1954 law that bars tax-exempt organizations, churches and charities from engaging in political activity. As a result of the parliamentarian’s decision, pastors will continue to be subjected to laws restricting political speech.
JOHNSON AMENDMENT RESTRICTIONS
The Johnson Amendment restricts churches and nonprofits in three ways:
- Tax-exempt churches and their staff cannot endorse or oppose political candidates, even indirectly.
- Churches cannot make political donations, invite one candidate to speak or use its facilities without the others, or compare a candidate’s positions to the church’s. Anything that suggests the church prefers a candidate or party can endanger the church’s tax exemption.
- Pastors are free to endorse candidates if they do so as private citizens: that is, not speak from the church building, making clear their independence from their church role.
While efforts to repeal the Johnson Amendment by way of this tax bill have ended, the protest by many pastors likely will not. And it’s almost just as certain they won’t be penalized.
SELDOM ENFORCED LAW
While the law clearly states that churches can lose their tax exempt status if they violate the Johnson Amendment, it’s widely held that it has only happened once in the 60 years the law has been on the books.
In 2000, the D.C. Circuit affirmed an IRS decision to revoke the tax-exempt status of the Church of Pierce Creek after it published full-page ads in two major newspapers opposing presidential candidate Bill Clinton.
In fact, the IRS has had plenty of evidence to go after pastors and that evidence has been produced by preachers themselves. Since 2008, pastors have been using one Sunday in October to speak out politically from the pulpit. It’s called Pulpit Freedom Sunday, an event started by Alliance Defending Freedom. Some pastors send those messages directly to the IRS daring the agency to come after them.
That is not to say that the IRS hasn’t investigated churches and nonprofits or reached out of court settlements following accusations, but unless there’s a court case, those events are unknown since the agency does not disclose them.
Indeed, and sadly, examples of the IRS targeting specific groups date back to President Franklin Roosevelt and involve administrations from both political parties.
EXAMPLES OF GOVERNMENT ABUSE
Such abuses and a firm conviction that government should not tell pastors what they can and cannot say from the pulpit have fueled protests against the Johnson Amendment.
Alliance Defending Freedom sent a letter to Congress in October pointing out a Lifeway Research Poll of 1,000 Protestant pastors that found 91 percent agree that “pastors should have the right to speak freely from the pulpit without the fear of being penalized by the government.” In addition, 73 percent agree that “Congress should remove the IRS’s power to penalize a church because of the content of its pastor’s sermons.”
The letter was signed by 4000 religious leaders whose fears are demonstrated in two recent examples of government overreach.
In 2014, the city of Houston issued subpoenas demanding a group of pastors turn over any sermons dealing with homosexuality, gender identity or Annise Parker, the city’s first openly lesbian mayor. Ministers who failed to comply were told they could be held in contempt of court. The city dropped the demand after a public outcry.
That same year, a Freedom From Religion Foundation press release announced it had reached a settlement with the IRS in its lawsuit against the agency. The release revealed the existence of secret procedures for investigating churches.
In that court case, the U.S. Court of Appeals sided with 38 non-profit organizations from 22 states who said they were targeted by the IRS and subjected to numerous violations of their First Amendment rights.
FEARS OF CHURCH ABUSE
Those applauding the decision by the Senate parliamentarian, including more than 4,000 faith leaders, more than 100 religious groups, and more than 5,000 nonprofits, say the Johnson Amendment prevents abuse from church leaders.
They say repeal would be a dangerous and radical stomping on the separation of church and state. They envision endless politicking from the pulpit and the political corruption of houses of worship and charities.
“Charities and foundations have worked for years, decades and centuries to build the public’s trust,” Tim Delaney, president of the National Council of Nonprofits, told the Wall Street Journal, “and we don’t want to be dragged down by toxic partisanship.”
Others worry that they won’t be able to turn down the allure of big bucks from political and special interest groups.
Alan E. Brownstein, a law professor at the University of California, Davis, told HowStuffWorks:
“It can be very, very hard for a house of worship that really doesn’t want to play this political game to stay silent if other houses of worship are endorsing their candidates. It becomes much more difficult for a house of worship who’d like to stay out of the fray,” Brownstein says. “You repeal it, you politicize houses of worship and other charities as well.”
THE DEBATE CONTINUES
Thursday’s development won’t be the end of this debate.
Sen. James Lankford (R-Okla.) said in a statement that he was “disappointed” that the measure was not allowed into the tax bill.
“The federal government and the IRS should never have the ability, through our tax code, to limit free speech; this tax reform bill was an appropriate place to address this historic tax problem. Nonprofits are allowed to lobby Congress or their local elected officials, but the ambiguity of the current tax code keeps non-profits in constant fear that they might have crossed a line that no other organization has to consider.”
And efforts to keep the Johnson Amendment in place will also continue. Sen. Ron Wyden’s (D-Ore.) told the Wall Street Journal:
I will continue to fight all attempts to eliminate this critical provision that keeps the sanctity of our religious institutions intact, prevents the flow of dark money in politics, and keeps taxpayer dollars from advancing special interest biddings.
As church leaders brace for the next round of battles over the Johnson Amendment, the debate will continue as to whether the law is a political hammer to be used against opponents or a safeguard against politics tarnishing the pulpit.