July 20, 2025

Johnson Amendment Memorandum

Background and Talking Points

By Craig Holman, Ph.D.

.pdf

A.   Johnson Amendment to 26 U.S.C. § 501(c)(3)

• In 1954, U.S. Sen. Lyndon Johnson (D-TX) proposed an amendment to the tax code that limits tax-exempt status to organizations that refrain from participating in any political campaign on behalf of (or in opposition to) candidates for public office, including endorsements or publishing campaign statements.
• The amendment was agreed to without debate and was included in the Internal Revenue Code of 1954. The provision was considered non-controversial at the time.
• Legal Rationale: The amendment was not offered as a restriction on speech rights. Instead, it was viewed as a condition for obtaining the benefit of tax-exempt status.
• Tax Benefits: A 501(c)(3) organization is tax exempt, and its donors may receive a tax deduction for their contributions.
• Section 501(c)(3) of the Internal Revenue Code describes organizations which may be exempt from federal income tax as follows:

“(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and 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.”

B.   Challenges and Enforcement.

• There have been few challenges to the Johnson Amendment, and the courts have consistently upheld the constitutionality of the amendment largely based on the grounds that tax exemption under §501(c)(3) of the tax code is a privilege and not a right. Any organization wishing to participate in political campaigns may do so under a different tax status.
• The most often cited case on this issue is Branch Ministries. This involved the sole case in which the IRS revoked the tax status of a church because of violating the Johnson Amendment. During the 1992 presidential election, Branch Ministries, a tax-exempt church, placed full-page advertisements in two national newspapers in which it urged Christians not to vote for then-presidential candidate Bill Clinton because of his positions on certain moral issues. “Bill Clinton is promoting policies that are in rebellion to God’s laws.” The ads also said, “Tax-deductible contributions for this advertisement gladly accepted.” The IRS revoked the tax-exempt status of the church that paid for the ads. Branch Ministries v. Commissioner, 211 F.3d 137(D.C. Cir. 2000). See also Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983).
• Generally, the IRS has been reluctant to enforce the Johnson Amendment, frequently turning a blind eye to blatant violations and exempting political activities by church leaders outside normal church proceedings.
• Though the IRS has revoked the tax status of a church because of political activities only once, the IRS has conducted numerous investigations of churches and other charities for potential violations of the Johnson Amendment.
• On May 4, 2017, President Trump signed the “Presidential Executive Order Promoting Free Speech and Religious Liberty.” The executive order did not repeal the Johnson Amendment—a law cannot be repealed by executive order—but it did signal to the Department of Treasury and the IRS that enforcement of the law should not be enforced with respect to churches: “churches should not be found guilty of implied endorsements where secular organizations would not be.”

C.   National Religious Broadcasters v. Billy Long, Docket no: 6:24-cv-00311-JCB (E.D. Texas) (2024).

• On August 28, 2024, four religious organizations – all evangelical – filed a lawsuit challenging the constitutionality of the Johnson Amendment on behalf of all 501(c)(3) organizations, not just churches. The National Religious Broadcasters, First Baptist Church of Waskom, Sand Springs Church of Athens, Texas, and Intercessors for America were plaintiffs in the lawsuit against the IRS and its Commissioner Billy Long in U.S. District Court in the Eastern District of Texas. National Religious Broadcasters v. Long.
• On July 7, 2025, the two plaintiff churches and IRS Commissioner Billy Long, appointed to the position by Trump, filed a motion asking the court to ender a consent decree stating that the Johnson Amendment does not apply to political activity by churches under certain conditions.
• The filing states that, according to the IRS, the Johnson Amendment does not apply to churches addressing their congregations through the church’s “customary channels of communication” “when their religious beliefs compel them to take a position on electoral politics.”
• These political communications to the congregation may include endorsements, as well as other statements with respect to political campaigns.
• The IRS states that, in its view, discussion of electoral politics through a church’s normal channels of communication with its congregation is akin to “family discussions.”
• The consent decree proposed by the IRS reads in part:

“When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words. To ‘participate’ in a political campaign is ‘to take part’ in the political campaign, and to ‘intervene’ in a political campaign is ‘to interfere with the outcome or course’ of the political campaign. Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.”

• If adopted as an order of the court, the consent decree would apply only to the two plaintiff churches. But the IRS’s position would necessarily apply to other religious institutions, although not to other 501(c)(3) entities.

D.   Talking Points

• The IRS has overstepped its authority. The agency does not have the authority to create or revoke laws. The IRS’s re-interpretation of the Johnson Amendment to exempt churches from its scope defies both logic and the plain text of the Johnson Amendment. Calling for the election of a specific candidate for public office is participating in campaign activity.
• “Customary channels of communication” may include all forms of public communications. The proposed consent decree would allow churches to make political endorsements through “customary channels of communication” with members. But churches customarily use a wide variety of forms of communications to reach their congregations, including print, newspapers, television and radio broadcasts, and social media. Very often, those communications are not limited to members. The communications will inevitably be public communications.
• Excluding churches from the Johnson Amendment is rife for abuse by political operatives. News of church endorsements of candidates will be used by candidates, political parties, and political operatives in their own campaign advertisements. Furthermore, because donations to 501(c)(3) entities remain anonymous, anonymous donors will be able to make unlimited campaign expenditures to churches to finance church broadcasts and social media of political speech, or even surreptitiously to buy their endorsement.
• Campaign endorsements and political activity by churches will be subsidized by taxpayers who may or may not hold similar political views. Church revenues are tax exempt, and donations to a political campaign by a church are tax deductible. Allowing use of tax-deductible donations to non-taxed organizations, such as churches, transfers taxpayer dollars from the public to political campaigns.
• The public, as well as large majorities of church-going members, do not want their church services tied up in partisan politics. According to a 2024 Lifeway Research poll, Americans, like pastors, are more likely to be opposed to in-church endorsements. Three in 10 U.S. adults (29%) believe pastors publicly endorsing candidates for public office during a church service is appropriate. Three in 5 (60%) disagree, including 42% who strongly disagree, and 11% aren’t sure. A different poll by PRRI found that opposition to church endorsement of candidates has remained the same over time. In 2023, three in four Americans (75%) opposed this idea, while only 20% favored it. These views closely mirror those from 2017, when 71% were in opposition and 22% were in favor. The trend is similar among church-going members.

Craig Holman, Ph.D.
Public Citizen
July 20, 2025