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The Devil in the Details

Proposals to “Destroy” or Alter Johnson Amendment Could Create a New Deluge of Political Spending

By Taylor Lincoln and Rick Claypool

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The Johnson Amendment is a 1954 law named after then-Sen. Lyndon B. Johnson that prohibited groups registered under Section 501(c)(3) of the tax code from engaging in activities to influence elections. These groups – which include churches, charities and other religious organizations – may receive tax-deductible contributions. They are not required to disclose their donors.

While 501(c)(3) organizations are free to conduct nonpartisan civic engagement activities and speak out on issues of concern to their membership, the Johnson Amendment prevents them from engaging in elections. The law requires religious organizations and charities to remain above the political fray, committed to education, alleviating poverty, ministering to the spirit, curing disease, and addressing other basic human and social needs. The law also has ensured that Americans’charitable giving will not be channeled into political campaigns and has helped maintain the independence of the charitable and religious sectors. It also has prevented politicians from manipulating these organizations for partisan gain.

In recent years, some churches and other religious organizations have claimed that the Johnson Amendment violates the First Amendment because it prohibits pastors from endorsing candidates or making statements that could be construed as influencing an election. Many of these organizations participate in an annual protest during which pastors deliberately make political pronouncements from the pulpit, then challenge the IRS by mailing the agency recordings of their purported political activities.

The law gained national prominence in early February, when President Trump at the National Prayer Breakfast promised to “totally destroy the Johnson Amendment and allow our representatives of faith to speak freely.”

Critics of the Johnson Amendment have historically fallen into two camps: those who call for full repeal and those who advocate for the rule to be “fixed.”

Rep. Walter Jones (R-N.C.) reintroduced legislation on January 3, 2017, to repeal the Johnson Amendment. In the previous Congress, Jones’ proposal attracted only one cosponsor.

Rep. Steve Scalise (R-Ga.) has proposed the “Free Speech Fairness Act,” which appears to take amore modest approach.6 The Scalise bill, which attracted 19 cosponsors in the last Congress, would permit 501(c)(3) organizations to make political statements as long as they are “made in the ordinary course of the organization’s regular and customary activities” and add no more than “de minimis” incremental costs. Similar legislation has been introduced by Scalise and others this Congress. The Scalise bill’s inclusion of the word “incremental” could permit far more political activity than is implied by its simultaneous use of the term “de minimis.”

To the extent that churches simply want to alter the Johnson Amendment to allow pastors to include messages involving elections in their sermons, there is a better way. The Bright Lines Project, which seeks to clarify IRS regulations governing nonprofit organizations’ political activities, has proposed creating a safe harbor for electioneering speech in personal oral remarks at a meeting that is not broadcast. This solution would provide churches the legal security they have requested without running the risk of enabling 501(c)(3) groups to engage in large-scale political activity or subjecting nonpartisan religious institutions to potential political manipulation. The Bright Lines Project proposal may be found at www.brightlinesproject.org.