On Thursday, at the National Prayer Breakfast, President Donald Trump promised to “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”
Hours later, Congressmen Jody Hice (GA-R) and Steve Scalise (LA-R) introduced the Free Speech Fairness Act, legislation that would eliminate the Johnson Amendment from the U.S. tax code. Senator James Lankford (OK-R) introduced a companion bill in the Senate.
During the 2016 presidential campaign, the so-called Johnson Amendment received considerable attention. The issue was repeatedly highlighted in an effort to relieve evangelical and social conservative voters wary of Trump. At the Republican National Convention Trump warned, “An amendment pushed by Lyndon Johnson many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views.”
The Johnson Amendment, named after Texas Senator Lyndon Johnson, was introduced in 1954 as an amendment to section 501 (c)(3) of the U.S. tax code. The amendment prohibits tax-exempt organizations from directly participating in political campaigns through contributions or public statements for or against a candidate. While the amendment does not prohibit religious groups from discussing public policy, it does prohibit pastors from explicitly endorsing candidates for office. Failure to comply may result in revocation of tax-exempt status. For years, opponents of the law have referred to it as a “gag rule.”
The pertinent part of the amendment reads:
“Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited 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. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.”
Ironically, the amendment was not intended to target churches. Following his reelection in 1954, Senator Johnson was upset that a non-profit, tax exempt organization had distributed material recommending voting for his Republican challenger Carlos Watson. Despite winning the race with 84.6% of the vote and Democrats re-taking the U.S. Senate, Johnson pushed to limit the power of non-profits in elections. Although it was uncontroversial at the time, the unintended consequence was that it applied to churches which are also classified as 501 (c)(3) organizations.
Religious leaders have long advocated for the repeal of the Johnson Amendment. Even those wary of pastors becoming too involved in politics have supported the amendment’s repeal. In comments to Baptist Press, Russell Moore, President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention explained:
“While I don’t think a church normally should endorse candidates for office from the pulpit, that’s only because I believe the mission of the church ought to stand prophetically distant from political horsetrading. [But] that’s a matter of gospel prudence, though, not a matter of legal right and wrong. A congregation should decide when to speak and what to say. Such decisions shouldn’t be dictated by bureaucrats at the IRS or anywhere else… That’s why I support the freedom of speech for churches and pastors, even when they say more or less than what I would say from the pulpit.”
In his statement, Representative Hice, himself a Southern Baptist pastor, remarked:
“Our Nation was built on the foundation that freedom of speech and freedom of religion are unalienable rights. For too long, the IRS has used the Johnson Amendment to silence and threaten religious institutions and charitable entities. As a minister who has experienced intimidation from the IRS firsthand, I know just how important it is to ensure that our churches and nonprofit organizations are allowed the same fundamental rights as every citizen of this great Nation. I’m proud that our legislation accomplishes just that, because America is stronger and better when all of our citizens are free to express their convictions.”
The repeal bill would restore free speech for organizations—including churches and non-profits—while stipulating that expression of political viewpoints are made in the ordinary course of the organization’s regular activity and that related political/campaign spending is kept at a minimal.