Let Churches Speak Freely. Drop the Johnson Amendment — Or Just Make It Clear
The Republican Party platform promises to work for the revocation of the Johnson Amendment. It’s a campaign promise not heard in my lifetime.
Not familiar with the Johnson Amendment? It’s a provision of the tax code that prohibits churches and other non-profit groups from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office,” lest they lose their tax-exempt status.
So when the platform calls for calls for repealing the Johnson Amendment, it is saying that churches and charities should have the same First Amendment right to political speech enjoyed by everyone else.
It’s about time.
This is not to say churches should start endorsing candidates. It’s to say that the decision to endorse or not to endorse should be the decision of the churches, not the government.
And it’s to say something else, too: we need to put an end to the chilling effect fostered by the vagueness of the law and of the way the IRS has interpreted it.
The Johnson Amendment is the work of Lyndon Baines Johnson. In 1954, he was seeking re-election as a U.S. Senator from Texas. Two secular charitable groups that were a particular thorn in his side were supporting his opponent. Having won his first election by only 87 votes and never one to shy away from hardball politics, he engaged in an act of raw political power to silence these groups and protect his career.
Using his position as the Senate Majority Leader, he added an amendment to a tax bill that made illegal what, up until then, had always been legal: Campaign involvement by not-for-profit organizations. The Johnson Amendment was not discussed or debated on the Senate floor, which is symbolic of its impact.
The measure has been used by the Internal Revenue Service for more than 60 years to mute the voices of untold numbers of Americans. Yet the Supreme Court itself has asserted that the protection of citizens to advocate for particular causes reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” (New York Times Co. v. Sullivan, 1964.) In short, freedom should reign.
Fuzzy Language, Fuzzy Lines
When it comes to the Johnson Amendment, what it means to participate or intervene in a political campaign is not defined. And all the commentary that the IRS has done on the matter has not made it clearer. The IRS maintains that a pastor will not know if he has “crossed the line” unless and until “all the facts and circumstances” of what he said or did are considered. How exactly is that accomplished, and by whose interpretation, and when does one know he has reached the end of the process?
The chilling effect of this vagueness goes far beyond keeping churches from endorsing candidates. Churches become afraid even to appear to favor or discredit political parties or candidates or even positions. They censor themselves even when their speech would clearly not violate the Johnson Amendment.
The fact is that of the 300,000 churches in America, over all these years since 1954, only one has lost its tax exempt status — and only for a single day — for violating the Johnson Amendment — and that penalty had nothing to do with anything spoken from the pulpit or distributed in Church! The Church at Pierce Creek was given a slap on the wrist for publishing a newspaper ad four days before the 1992 election urging Christians explicitly not to vote for then-Governor Bill Clinton for president. The church lost its tax exempt status for one day, after which it was restored.
We are left with a six-decade enforcement record that has never resulted in the loss of tax-exempt status for a church where campaign issues or even candidates were mentioned from a pulpit, taught in a classroom, printed in the church bulletin, or distributed to the congregation. Pause for a moment to absorb that fact. What so many churches fear — namely, that the state is going to require them to pay large sums of taxes for their “political intervention” — has never happened, not even once.
And the last thing the IRS wants is for its interpretation of the Johnson Amendment to be clarified by the courts. That’s why, when pastors, churches, and non-profit organizations like mine have pushed back on the IRS interpretations of what we can and cannot do, they have always backed off.
Yet too many don’t push back, either because they are scared into silence or because blaming the tax guy is an easy excuse behind which to hide their cowardice to speak clearly about contentious issues.
The question, then, that we at Priests for Life pose, and that Donald Trump and the Republican Party are posing too, is this: If a federal law is so vague that the government won’t enforce it and the IRS won’t clarify it, and it intimidates citizens from exercising their free-speech rights, why not clarify it and draw some bright lines for those expected to obey it? Otherwise, skeptics – like me – might draw the conclusion that the government likes to keep things vague because that murkiness accomplishes more than the Johnson Amendment ever could.