GOP Introduces Bill to Repeal Johnson Amendment Limiting Church Political Activity

By Dustin Siggins Published on September 29, 2016

Since 1954, the Johnson Amendment has limited the free speech of churches and other non-profits. Now, a Georgia Congressman and the third-ranking Republican in the House want to restore that liberty.

“I have been involved in this battle for close to 10 years as a pastor,” GOP Rep. Jody Hice told reporters on Wednesday. “When government acts as a gatekeeper of free speech and what free speech ought to be, then it has abridged our free speech rights.”

Speaking at a press conference to announce the introduction of H.R. 6198, the Free Speech Fairness Act of 2016 (FSFA), he was joined by Republican Whip Steve Scalise of Louisiana, Alliance Defending Freedom (ADF) attorney Christiana Holcomb, Family Research Council president Tony Perkins and evangelical leader Bishop Harry Jackson.

An Accidental Restriction

The bill would overturn the Johnson Amendment’s restriction on the ability of non-profits (as defined under section 501(c)3 of the tax code) to endorse candidates. The Amendment was introduced by then-senator Lyndon Johnson, who wanted to silence corporate opponents. The law ended up accidentally covering churches because it applies to all c3 non-profits. (See this article for a more detailed description of the origin of the restriction.)

ADF has long fought the restrictions in the Johnson Amendment, organizing since 2008 Pulpit Freedom Sunday. The group encourages pastors to speak politically from the pulpit on that day, in order to force the IRS to uphold the Amendment and thus lead to a lawsuit to overturn the law.

So far, said Holcomb, the IRS “has refused to take the bait.” She accused the agency of using “intimidation tactics” against churches, a common refrain from the five speakers. A prominent example of that alleged intimidation is the Obama administration creation in 2012 of “a unit which investigates church violations.” Holcomb said the IRS has admitted it is currently examining 99 churches that may have broken the law, but the agency has been unwilling to name the churches to the public, including to the churches themselves.

The group that sued the IRS and led to the creation of the IRS unit is the Freedom From Religion Foundation. Attorney Sam Grover told The Stream that while he hadn’t seen the bill, the “proposition” of allowing churches “to maintain all the tax-exempt benefits that churches currently enjoy while allowing them to fully endorse specific political candidates for office …. is frighteningly reckless.”

“[C]hurches are essentially black boxes when it comes to financial transparency,” said Grover. “Most churches don’t file any tax information with the IRS. This bill would either invite government oversight of church finances, which would come with a host of free exercise issues, or it would allow churches to engage in unlimited, unrestricted campaigning for political candidates, which would further undermine our political process.”

He concluded that the bill “would turn churches into tax exempt political machines that accept tax deductible donations and funnel money to political campaigns with no government oversight.”

Perkins disagreed. Asked about what limits FSFA would leave in place, Perkins told The Stream the bill “restores the free speech rights of non-profits. It does not allow non-profits to become political operatives or fronts for political operations. If [the speech] is in the scope of your normal activities, that’s fine. You can make a statement, you can make an endorsement.” The bill would not allow non-profits to “turn tax-exempt money into political funds.”

Holcomb agreed with Perkins, telling The Stream, “the bill simply provides a valve for free speech while maintaining the stability of the nonprofit sector and leaving in place, for example, campaign finance laws.”

Everyone Gets Targetted, Even Liberals

While the IRS was heavily criticized by all the speakers for targeting conservatives — under former IRS agent Lois Lerner, Tea Party and socially conservative groups were targeted because of their politics — Jackson noted that liberals have also been pressured for political speech. The NAACP was investigated when its former president Julian Bond criticized then-President George W. Bush. Likewise, a church was investigated for a pastor’s criticisms of the Iraq War.

“I defended the pastor in California who spoke against George W. Bush,” Perkins told The Stream. “That’s within the normal course of his business.”

The Stream also asked Hice and Scalise why the bill is being introduced with just weeks before a new Congress is sworn into office. With a Democratic filibuster in the Senate and a Democrat in the White House, odds of passage are slim.

“We did want to lay down a marker as this presidential election is really getting kicked into full swing,” explained Scalise. “We’d like this to be part of the political discourse” as voters consider their votes in November. “The country can ask this question: Will the next president support legislation like this to restore religious freedom?”

The presidential election has jump-started what was largely a dormant conversation on the Johnson Amendment. As The Stream Executive Editor Jay Richards noted in an interview  with One America News, repeal is in the Republican Party’s official platform for the first time, and GOP presidential nominee Donald Trump’s declaration that he will repeal it has excited social conservatives.

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