The Johnson Amendment: What’s the Big Deal?

 

Until President Donald Trump pledged to “totally destroy” the Johnson Amendment, most Americans (except a few well-informed church leaders and tax lawyers) had no idea what he was talking about. After all, the law has apparently never been enforced or even discussed to any significant degree.

So, what exactly is the Johnson Amendment? Well, it was a stealthy addition to a large piece of tax legislation enacted by Congress on July 2, 1954. The amendment itself had a very specific purpose. It prohibited nonprofit, tax-exempt organizations created and operating pursuant to section 501(c)(3) of the Internal Revenue tax code from endorsing or opposing political candidates.

Generally speaking, section 501(c)(3) organizations are nonprofit groups more commonly known as charities. Most charities are legitimate and do good work for the people and communities they serve. As a result, the federal government gives them some tax benefits.

First and foremost, functioning as a section 501(c)(3) nonprofit makes it much easier to raise money. Donations are tax deductible for the donor and not taxable to the donee. As a result, every taxpayer effectively contributes the taxes lost from the deduction by the donor from their income for tax purposes.

Senator Lyndon Johnson (who became President Johnson) insisted that the amendment helped keep charities true to their altruistic principles and out of the dirty business of politics. In reality, Senator Johnson, up for reelection, had become concerned about a tax-exempt, nonprofit group calling itself the Facts Forum which “educated” voters through “public service programs” about a litany of issues and politicians. Senator Johnson, tipped off that he was on their “hit list” because of certain alleged character deficiencies, added the “Johnson Amendment” to a massive congressional rewrite of the tax code.

What Senator Johnson failed to realize was that the broadly worded law — designed to limit the activities of de facto political action groups — covered all non-profits, like the Salvation Army, not just the one he was worried about. Indeed, no one seriously considered the fact that, as worded, the Johnson Amendment would also apply to churches, and more particularly church pulpits.

As a practical matter, the Johnson Amendment has meant little as it relates to churches and their clergy. According to the Alliance Defending Freedom, “Ironically, after 60-plus years of the IRS strictly interpreting the amendment, there is no reported situation where a church lost its tax-exempt status or was punished for sermons delivered from the pulpit.”

Indeed, other tax-exempt, nonprofit organizations have popped up with voter guides and position papers, carefully omitting any “endorsement” of or opposition to a candidate, but leaving no doubt which candidates line up with their positions on the issues. Although some religious organizations use such guides, the practice has now become so commonplace that virtually every kind of organization — from animals rights advocates to climate change enthusiasts — now has its own version of these educational materials including voter guides.

But things changed a bit when the Internal Revenue Service during President Barack Obama’s administration started to target conservative tax-exempt, nonprofit organizations. Combine the politicization of the Internal Revenue Service with various iterations of “hate” legislation proposed — and sometimes passed — aimed what people say (including clergy) and suddenly churches and their leaders became alarmed.

Before President Trump’s recent pledge, the focus of attack on the legislation was the courts. Alliance Defending Freedom arranged for political endorsements to be made by church leaders from the pulpit. Apparently recognizing just how indefensible the law was, the Internal Revenue Service never took any action to enforce the law. Yet, even though the Internal Revenue Service avoided taking action against anyone based on the law, the chill or threat of the law remained.

Basically, the Internal Revenue Service’s inaction has not made churches and their leaders feel any safer. Instead, church leaders see it as the Sword of Damocles hanging over them by a thread, constantly aware that a politicized Internal Revenue Service shrouded in a chorus of intolerance (as seen on many college campuses recently) could easily decide to cut the thread and permit the full impact of the law to be felt.

Others worry that repealing the Johnson Amendment will lead to the use of churches themselves as political weapons in future campaigns. Yet, unless they actually donate money to a candidate, it is nothing more than words — words that can be spoken anywhere, and presumably — under the First Amendment — even in the church. (Likely, this Constitutional protection of free speech is the deterrent that has kept the Internal Revenue Service from ever enforcing the Johnson Amendment).

But, if the law has no meaning, or is indeed unconstitutional — never to be enforced — why leave it on the books? It certainly does have a chilling effect in the one place where there should be none — a place of confession and worship.

Many find it hard to understand all the fuss. But then, the Sword of Damocles does not hang over their heads. If it did, they would have cheered just as loudly when President Trump said he would “totally destroy” the Johnson Amendment. Now, at least, everyone knows what it is.

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