By Daniel Bennett
As far as obscure IRS regulations go, there is probably none more salient today than the Johnson Amendment. Enacted in 1954 and named for then-Sen. Lyndon Johnson, the regulation bars nonprofit, 501(c)(3) organizations—including churches—from explicit engagement in political activities (Andrew Lewis and Paul Djupe have helpfully broken down the history of and clergy response to the Johnson Amendment in a recent post).
The Johnson Amendment (JA) has been targeted for years by conservative interest groups and, more recently, President Trump. On the campaign trail, Trump promised to lead an effort to repeal the JA. And speaking at the National Prayer Breakfast last week, Trump again pledged to “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”
According to the IRS, churches and other nonprofit organizations are “absolutely prohibited” from engaging in “political campaign intervention.” Certain activities are permissible under the JA, like the distribution of voter information guides. But an organization engaged in prohibited activities—such as endorsing a candidate or ballot measure—risks losing its 501(c)(3) status and the tax-exemption that comes with it.
This threat does not sit well with some organizations. Alliance Defending Freedom (ADF), a Christian conservative legal organization headquartered in Arizona, has positioned itself as the primary opponent of the JA. Since 2008, ADF has organized “Pulpit Freedom Sunday,” which encourages pastors and their churches to violate the JA by endorsing candidates from the pulpit prior to Election Day, and to submit recordings of their sermons to the IRS for review.
According to ADF, 33 pastors and churches participated in the inaugural event in 2008. That number increased to 100 in 2010. By 2012, the number exploded to almost 1,500. By 2014, it was 1,800. And though the numbers for last fall haven’t been announced, ADF claims more than 4,100 churches have participated over the years.
With this growing effort to encourage pastors and churches toward political speech, just how many churches have lost their tax-exempt status? Zero. In fact, the IRS has shown little interest in enforcing the JA against these churches, despite pressure from interest groups urging action. Still, the mere threat of IRS scrutiny has been enough to motivate ADF (and others groups) to take action against the JA.
I once spoke with Erik Stanley, the attorney in charge of ADF’s Pulpit Freedom Initiative. He told me ADF’s goal is to challenge the constitutionality of the JA on First Amendment grounds. But he also suggested that relegating the JA to dead-letter status among regulations would be a nice consolation prize. Thus, while a Supreme Court ruling striking down the JA would be ideal for ADF and its allies, at the moment things aren’t too bad.
While most discussion of the JA has focused on the implications for churches, repealing it would likely have a tremendous impact on the broader politics of campaign finance. Since a repeal would not single out churches for preferential treatment—doing so would almost certainly violate the Establishment Clause of the First Amendment—any 501(c)(3) group would be free to engage in direct political advocacy.
That is, donations to these groups would presumably remain tax deductible under a repeal, which could trigger a shift in how PACs and related groups organize for tax purposes (donations to PACs are not currently tax deductible). To cynics, this highlights the actual purpose behind efforts to eliminate the JA: to open the door to more money in the political process, but this time subsidized by the federal government.
As a candidate, Donald Trump made his opposition to the JA a central part of his efforts to woo evangelical elites and rank-and-file voters alike. And President Trump has showed no signs of slowing down in his rhetoric against the JA. It remains to be seen if the JA’s days are actually numbered, and if so, what that means for the future of political speech in the United States.
Daniel Bennett is Assistant Professor of Political Science at John Brown University. He studies the intersection of law, religion, and politics in the United States. You can follow him on Twitter.