In Tax Legislation, GOP May Open Churches & More to Partisan Political Manipulation

Public Citizen joined with nine other organizations in issuing the following memo on the possible repeal of the Johnson Amendment.

As Republicans in Congress work to overhaul the nation’s tax code, some lawmakers are trying to repeal a six-decade-old law that prohibits churches and other tax-exempt groups from endorsing or opposing political candidates.

Known as the Johnson Amendment, the law has shielded nonprofits from partisanship and prevented charitable donations from being funneled into political campaigns. But President Donald Trump has urged lawmakers to do away with the measure, even though it helpsd maintain the integrity and independence of religious and nonprofit groups. It does not prohibit nonprofits from speaking out on policy issues, but it does prohibit them from being openly partisan. Without this rule, tax-exempt churches and charities would be open to manipulation for partisan political ends.

Repeal of the Johnson Amendment Would Threaten the Integrity of Charitable Organizations

Repealing the Johnson Amendment would undermine the central mission of churches, mosques and synagogues by pushing them into the center of partisan politics. These and other charitable tax-exempt groups have long been considered above the political fray, committed to ministering to the spiritual and social needs of their members and communities. Repealing the law would raise questions about whether the public’s charitable contributions are being used for political causes instead of their intended purpose.

Political Actors Could More Easily Manipulate Churches and Charitable Nonprofits

Repealing the law would permit partisan exploitation of the goodwill and integrity established by nonprofits over more than a half century. Donors and leaders with political agendas could harm a nonprofit’s mission if the organization steered its activities toward a donor’s preferred candidates.

For example, a donor could withhold a donation if a church declined to back a candidate running for Congress, or a board could change a charity’s mission based on which candidates they opposed. Changing the law could lead to divisions within houses of worship and charitable organizations, as members, donors and those they serve split along party lines.

Repeal Would Open the Floodgates for Dark Money to Flow Into Churches and Other Charitable Organizations

The repeal of the Johnson Amendment would create a substantial loophole in campaign finance law that could be exploited by those seeking to influence elections by manipulating faith leaders and faith communities.

Because tax-exempt charities are not required to disclose their donors, political donors would have a strong incentive to shift many of their political activities to charities such as churches to avoid campaign contribution disclosure laws.

And they could receive the added benefit of having their donations be tax-deductible. That would mean an even more lopsided influence for outside money in American elections than already exists under the U.S. Supreme Court’s Citizens United ruling. It would fundamentally alter the legal separation between politics and religion, opening another loophole for undisclosed donors to back political campaigns.

Current Law Affords Houses of Worship Robust Free Speech Rights

Critics of the Johnson Amendment argue that it restricts the free speech rights of faith leaders and houses of worship. But the law doesn’t prevent tax-exempt religious groups from discussing political topics; it prevents them only from endorsing or opposing candidates for public office or diverting organizational resources to partisan campaigns. That means faith leaders and houses of worship still have room to critique social, economic and political policies that affect their congregants, clients and communities. And faith leaders still can endorse or oppose political candidates, but only in their individual capacity.

The Johnson Amendment is about tax status, not speech. Houses of worship can endorse candidates, but then they must give up their tax-exempt status. The federal government does not have a duty to subsidize the political activity of nonprofit organizations.

Congress should not water down a key law that ensures that tax-exempt groups, including religious organizations, can focus on their spiritual message. Doing away with the Johnson Amendment would cast a shadow over the independence of charitable and religious institutions and compromise their core missions.

Background Materials

1. “The Johnson Amendment in five Questions and Answers” http://www.npr.org/2017/02/03/513187940/the-johnson-amendment-in-five-questions-and-answers

2. “The Devil in the Details: Proposals to ‘Destroy’ or Alter Johnson Amendment Could Create a New Deluge of Political Spending” https://www.citizen.org/sites/default/files/devil-in-the-details-johnson-amendment-report.pdf

3. “In Defense of the Johnson Amendment” http://www.insidesources.com/point-defense-johnson-amendment

4. “Churches and Campaign Activity: Analysis Under Tax and Campaign Finance Laws” https://www.everycrsreport.com/files/20121009_RL34447_22d86a9c9b98adab4e9846c34dccff3dc741b652.pdf

5. “Congress: Defend the Common Law and Common Sense of Nonpartisanship” http://thehill.com/blogs/pundits-blog/civil-rights/349641-congress-must-defend-the-common-law-and-common-sense-of

Letters of Support for the Johnson Amendment