Heather Greene — March 12, 2017
WASHINGTON – On Feb. 2, President Donald Trump returned for a brief moment to a recurring issue facing his administration: the Johnson Amendment. At the National Prayer Breakfast, he told the attendees,“Among those freedoms is the right to worship according to our own beliefs. That is why I will get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that — remember.”
[Public domain.]Repealing the Johnson Amendment has been one of the main focuses of Trump’s campaign, and it continues to find its way into current political discourse with regard to religious freedom. Trump began speaking out against the tax code early in his bid for the presidency. Then, during his acceptance speech at the 2016 Republican National Convention, he said:
At this moment, I would like to thank the evangelical and religious community in general who have been so good to me and so supportive.You have much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits. 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. I am going to work very hard to repeal that language and protect free speech for all Americans.
What is this Johnson Amendment, and what is its relationship to religious freedom? How does it affect the greater Pagan, Heathen, and polytheist communities in the U.S.?
History of the Johnson Amendment
The now-famous tax code change was implemented in 1954, after being passed by a Republican congress and signed into law by President Dwight D. Eisenhower. It’s name is taken from Lyndon B. Johnson who, at the time, was a senator from Texas. As the story goes, in 1954, Johnson was running for reelection against 30-year-old Dudley Dougherty. While Johnson had only won the previous election in 1948 by 87 votes, he was reportedly expected to easily to beat Dougherty in the primary race.
However, during the campaign process, Johnson vocally opposed the ongoing McCarthy trials and its related fear-mongering. Contrary to that, Dougherty was running on platform that supported the trials and the government’s aggressive attempts to stop the spread of communism in the U.S.
During the campaign, several large nonprofit organizations stepped in to back Dougherty, including Fact Forum and the Committee for Constitutional Government. These wealthy secular groups avidly supported the government’s anti-communist efforts and, as result, they publicly engaged in electioneering on behalf of Dougherty.
Sen. Lyndon B. Johnson (D-Texas) 1954 [Public Domain]It was at this time that Johnson proposed the tax code change, and it is assumed by most historians that he did so to stop Fact Forum, CCG, and other nonprofits from backing McCarthyites. The effort also helped to ensure his own win.
In that light, his motive appears to be one of personal political profit and not one based on ideology. At the same time, the move does demonstrate Johnson’s distaste for McCarthyism and the ongoing so-called “witch trials.”
Regardless of Johnson’s motive, there is no evidence to suggest that religious freedom factored into the debates at all. The “separation of church and state” was not a founding issue. As noted above, the two main nonprofits that inspired Johnson’s action were both secular. Moreover, it appears that the introduction of the new tax code was not considered controversial in any way. In fact, there is little evidence of congressional debate.
The code
The Johnson Amendment has been part of the IRS tax code since that time, more than six decades. It limits nonprofits of all kinds from engaging with political campaigns. Originally it was written to prevent only the support of a candidate. However, the code was amended in 1987 to include activity that would directly oppose a candidate. Looking at the text itself, the IRS says:
The law prohibits political campaign activity by charities and churches by defining a 501(c)(3) organization as one “which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office (from www.irs.gov).
The constitutionality of the Johnson Amendment was challenged in the 1990s by the evangelical organization Branch Ministries. During the 1992 election cycle, the organization had placed advertisements in newspapers urging Christians not to vote for Bill Clinton. The IRS subsequently revoked its nonprofit status, and Branch Ministries decided to challenge that decision in court.
The organization’s board stated that they were “victims of selective prosecution” and that the IRS’ decision was made based on the ministries’ political and religious position.
In 1999, the U.S. District Court in Washington D.C. ruled against Branch Ministries, saying, “The government has a compelling interest in maintaining the integrity of the tax system and in not subsidizing partisan political activity, and Section 501(c)(3) is the least restrictive means of accomplishing that purpose.”
The court’s opinion also notes that there was no evidence to suggest that the IRS decision was politically motivated. Branch Ministries appealed in 2000, but the higher court only affirmed the 1999 decision.
It is important to note that the Johnson Amendment is different from other nonprofit IRS code restrictions with regard to government or political activity. While the Johnson Amendment strictly forbids campaign involvement, the IRS itself allows for a limited amount of other politically-based work, such as lobbying and speaking out about pending legislation or court cases. The differences are outlined on the IRS website.
Johnson Amendment in practice
As noted earlier, the Johnson Amendment applies to all nonprofits, including many very well-known Pagan, Heathen, and polytheist organizations. For example, The Wild Hunt falls under this category as does Gods and Radicals; two media organizations that are not churches or houses of worship. The code affects large national groups such as the Covenant of the Goddess, Circle Sanctuary, the Aquarian Tabernacle Church, and The Troth, as well as community-focused groups, event organizations, and churches such as Twin Cities Pagan Pride, CAYA Coven, and EarthSpirit Community.
Anytime a group states that it has been granted 501(c)3 status, the Johnson Amendment limitations apply. The leaders of these organizations are not permitted to speak for or against a candidate running for public office. If they do so, the organization risks losing its tax-exempt status. As legal precedent shows, the courts will support the IRS in any such challenges.
When asked in a TWH interview about the fine line between the allowable political activity and the limits stated in the Johnson Amendment, attorney Brandon Borgos explained, “Electioneering is the term we are looking for here. You can talk about issues, but once that goes into supporting or opposing candidates or specific legislation, no dice. Then we are in electioneering territory.”
Borgos goes on to say, “Organization leaders can’t make partisan comments at their official functions and definitely not in their publications.
“Now, if it was in an unofficial capacity at an unofficial event and had the caveat that this was that leader’s personal views and weren’t reflective of or intended to represent the organization’s views, that would be just fine,” Borgos adds, but that is, as he suggests, a grey area. There are risks.
Borgos noted that the IRS does, in fact, revoke tax-exempt status from “tons of organizations” each year for violating its rules.
The controversy
The question then becomes whether the tax code itself is unconstitutional by limiting freedom of speech, or is the code successfully doing exactly what it was meant to do, and “protecting the integrity of the tax system” by not allowing the government to “subsidize partisan political activity?”
That is one of the many points made by those who support the code’s protection. The government should not be “subsidizing partisan political activity” regardless of a nonprofit’s mission and purpose. Religion, in this case, is not a factor in the argument to keep the code.
However, in the most recent conversations on the topic, religion remains the focus, more specifically a clergy person’s right to free speech. That is not surprising in a political environment in which much of the division is being scored along lines of religious belief. Even though the code applies to all nonprofits and its origins are secular, the current argument remains focused on a church leader’s right to free expression.
Last week, the members of Our Freedom: A Pagan Civil Rights Coalition released a statement that says, “The leaders herein undersigned oppose any effort to rescind, reverse, and/or repeal the Johnson Amendment. Since 1954 it has been a bulwark in the tax code where it has reinforced both the Establishment Clause and the Free Exercise Clause of the First Amendment.”
The group is concerned that with the code removed many minority religious voices will be unheard due to the much larger and more populous religious majority.
Americans United (AU), a nonprofit itself, goes a step further, saying, “[Repealing the Johnson Amendment] would threaten religious freedom by opening up houses of worship to being used as political candidates’ campaign offices or as a means of funneling money to political candidates.” AU added its name to a list of 85 nonprofits that oppose removal of the code. That list includes both religious and secular organizations.
In that respect, the Johnson Amendment is not unconstitutional at all. Rather, it supports the First Amendment’s implied separation of church and state.
AU also suggested that the Johnson Amendment not only protects the “integrity of the tax system” but also the “integrity of a nonprofit.” With the code in place, it is clear that donations are being donated and used to promote the nonprofit’s stated mission and not electioneering.
Borgos expressed the same idea, saying that a repeal might result in people donating to nonprofits, religious or otherwise, just to support the leader’s political electioneering.
On the other side of the coin, there are many that do support the amendment’s removal, including Pagans. One of our regular readers said in a comment, “I’m of mixed mind on the Johnson Amendment. I agree with the reasons it was created and the reasons for trying to preserve it, but on a practical level, it has been virtually worthless because it has never been enforced.”
Is it being enforced? Can it be enforced? Large public violations, such as the efforts of Branch Ministries, can be caught. However, weekly speeches, lectures, and conversations not made in the public eye are easily overlooked and never seen. How much does that matter? And, is the problem in its enforcement rather than the amendment itself?
Either way, the opposing view point is that the Johnson Amendment limits the freedom of speech of clergy persons, and that idea is the rally cry being taken up by Trump, the Republican party, and a number of large Christian organizations. One such organization, the ACLJ, writes, “Our nation once had a longstanding tradition of church involvement in the political activity of the day. It was previously commonplace for pastors to preach about political issues and candidates.”
The ACLJ argues that, since Johnson’s original purpose was one of personal politics, the amendment is unconstitutionally preventing churches from speaking out, a tradition that is “longstanding.”
Free Speech Fairness Act
The current effort to repeal the 1954 tax code does not rest solely with President Trump, although he has been the most vocal. This intent was also written directly into the Republican party’s 2016 platform under the “Religious Liberty” subheading. It reads:
We value the right of America’s religious leaders to preach, and Americans to speak freely, according to their faith. Republicans believe the federal government, specifically the IRS, is constitutionally prohibited from policing or censoring speech based on religious convictions or beliefs, and therefore we urge the repeal of the Johnson Amendment (p. 18).
The GOP has not wasted any time. On Feb. 1, the day before Trump’s prayer breakfast speech, Rep. Steve Scalise (R-LA) introduced to the House the Free Speech Fairness Act (H.R. 781). This piece of legislation does “totally destroy” the Johnson Amendment, but it does offer greater opportunity for nonprofit organizations to engage in political speech with regard to campaigns. The summary reads:
This bill amends the Internal Revenue Code to permit a tax-exempt organization to make certain statements related to a political campaign without losing its tax-exempt status. An organization may not lose its tax-exempt status under section 501(c)(3) or be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any statement that: (1) is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (2) results in the organization incurring not more than de minimis incremental expenses.
In other words, HR 781 would allow nonprofits to participate and intervene in political campaigns, for or against a candidate, if the actions are part of the “ordinary course and customary activities” of the organization’s work and don’t cause the organization to incur an excess of expenses. That language modifies the Johnson Amendment but does not “totally destroy it.”
That change, if enacted, will apply to all nonprofits, not just churches. That is an important point. While religion, specifically free speech for clergy, remains the driving force behind the movement to repeal the Johnson Amendment, it is only the fuel for the fire. Churches make up only one small portion of the large nonprofit sector, and the change will affect the entire sector as a whole.
Then again, a significant portion of the largest non-profit U.S. organizations do have strong and notable religious affiliations.
“Now, if it was in an unofficial capacity at an unofficial event and had the caveat that this was that leader’s personal views and weren’t reflective of or intended to represent the organization’s views, that would be just fine,” Borgos adds, but that is, as he suggests, a grey area. There are risks.
Borgos noted that the IRS does, in fact, revoke tax-exempt status from “tons of organizations” each year for violating its rules.
The controversy
The question then becomes whether the tax code itself is unconstitutional by limiting freedom of speech, or is the code successfully doing exactly what it was meant to do, and “protecting the integrity of the tax system” by not allowing the government to “subsidize partisan political activity?”
That is one of the many points made by those who support the code’s protection. The government should not be “subsidizing partisan political activity” regardless of a nonprofit’s mission and purpose. Religion, in this case, is not a factor in the argument to keep the code.
However, in the most recent conversations on the topic, religion remains the focus, more specifically a clergy person’s right to free speech. That is not surprising in a political environment in which much of the division is being scored along lines of religious belief. Even though the code applies to all nonprofits and its origins are secular, the current argument remains focused on a church leader’s right to free expression.
Last week, the members of Our Freedom: A Pagan Civil Rights Coalition released a statement that says, “The leaders herein undersigned oppose any effort to rescind, reverse, and/or repeal the Johnson Amendment. Since 1954 it has been a bulwark in the tax code where it has reinforced both the Establishment Clause and the Free Exercise Clause of the First Amendment.”
The group is concerned that with the code removed many minority religious voices will be unheard due to the much larger and more populous religious majority.
Americans United (AU), a nonprofit itself, goes a step further, saying, “[Repealing the Johnson Amendment] would threaten religious freedom by opening up houses of worship to being used as political candidates’ campaign offices or as a means of funneling money to political candidates.” AU added its name to a list of 85 nonprofits that oppose removal of the code. That list includes both religious and secular organizations.
In that respect, the Johnson Amendment is not unconstitutional at all. Rather, it supports the First Amendment’s implied separation of church and state.
AU also suggested that the Johnson Amendment not only protects the “integrity of the tax system” but also the “integrity of a nonprofit.” With the code in place, it is clear that donations are being donated and used to promote the nonprofit’s stated mission and not electioneering.
Borgos expressed the same idea, saying that a repeal might result in people donating to nonprofits, religious or otherwise, just to support the leader’s political electioneering.
On the other side of the coin, there are many that do support the amendment’s removal, including Pagans. One of our regular readers said in a comment, “I’m of mixed mind on the Johnson Amendment. I agree with the reasons it was created and the reasons for trying to preserve it, but on a practical level, it has been virtually worthless because it has never been enforced.”
Is it being enforced? Can it be enforced? Large public violations, such as the efforts of Branch Ministries, can be caught. However, weekly speeches, lectures, and conversations not made in the public eye are easily overlooked and never seen. How much does that matter? And, is the problem in its enforcement rather than the amendment itself?
Either way, the opposing view point is that the Johnson Amendment limits the freedom of speech of clergy persons, and that idea is the rally cry being taken up by Trump, the Republican party, and a number of large Christian organizations. One such organization, the ACLJ, writes, “Our nation once had a longstanding tradition of church involvement in the political activity of the day. It was previously commonplace for pastors to preach about political issues and candidates.”
The ACLJ argues that, since Johnson’s original purpose was one of personal politics, the amendment is unconstitutionally preventing churches from speaking out, a tradition that is “longstanding.”
Free Speech Fairness Act
The current effort to repeal the 1954 tax code does not rest solely with President Trump, although he has been the most vocal. This intent was also written directly into the Republican party’s 2016 platform under the “Religious Liberty” subheading. It reads:
We value the right of America’s religious leaders to preach, and Americans to speak freely, according to their faith. Republicans believe the federal government, specifically the IRS, is constitutionally prohibited from policing or censoring speech based on religious convictions or beliefs, and therefore we urge the repeal of the Johnson Amendment (p. 18).
The GOP has not wasted any time. On Feb. 1, the day before Trump’s prayer breakfast speech, Rep. Steve Scalise (R-LA) introduced to the House the Free Speech Fairness Act (H.R. 781). This piece of legislation does “totally destroy” the Johnson Amendment, but it does offer greater opportunity for nonprofit organizations to engage in political speech with regard to campaigns. The summary reads:
This bill amends the Internal Revenue Code to permit a tax-exempt organization to make certain statements related to a political campaign without losing its tax-exempt status. An organization may not lose its tax-exempt status under section 501(c)(3) or be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any statement that: (1) is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (2) results in the organization incurring not more than de minimis incremental expenses.
In other words, HR 781 would allow nonprofits to participate and intervene in political campaigns, for or against a candidate, if the actions are part of the “ordinary course and customary activities” of the organization’s work and don’t cause the organization to incur an excess of expenses. That language modifies the Johnson Amendment but does not “totally destroy it.”
That change, if enacted, will apply to all nonprofits, not just churches. That is an important point. While religion, specifically free speech for clergy, remains the driving force behind the movement to repeal the Johnson Amendment, it is only the fuel for the fire. Churches make up only one small portion of the large nonprofit sector, and the change will affect the entire sector as a whole.
Then again, a significant portion of the largest non-profit U.S. organizations do have strong and notable religious affiliations.
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