The bad news: At least one legislator wasted no time in re-introducing a bill that would roll back the so-called Johnson Amendment, which prohibits nonprofit organizations, including houses of worship, from endorsing or opposing candidates for public office.
On Jan. 3, the first day the new 115th Congress was in session, U.S. Rep. Walter B. Jones (R-N.C.) introduced H.R. 172, legislation that he says aims “to restore the Free Speech and First Amendment rights of churches and exempt organizations by repealing the 1954 Johnson Amendment.”
The amendment is named after former president Lyndon B. Johnson, who was still a U.S. senator representing Texas when he spearheaded the move to amend the tax code. His amendment states that tax-exempt non-profit groups 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.”
The full text of Jones’ bill was not yet available at Church & State’s press time, but there’s no reason to suspect it will be substantively different from a bill with the same description he introduced along with fellow North Carolina congressman U.S. Rep. Richard Hudson in January 2015.
In fact, with only one exception, Jones has introduced similar legislation during every session of Congress since 2001.
Jones’ last bill proposed to remove language from the tax code that prevents nonprofits from participating or intervening in political campaigns by endorsing or opposing specific candidates.
Typically, Jones’ proposals have withered and died on the vine, rarely getting beyond the initial referral to the Ways and Means Committee, the House body that oversees tax writing.
In 2002, during the first session in which Jones introduced what he then called the “Houses of Worship Political Speech Protection Act,” the bill came up for a vote by the full House. It failed in a fast-track, late-night voting attempt that required a two-thirds majority in order to pass. The measure did not garner even a simple majority of supporters.
But much has changed over the past 14-plus years. Most notably, the issue of church electioneering became prominent during the 2016 presidential campaign, with Donald Trump repeatedly making promises to repeal the Johnson Amendment once he was in office.
“So, if I get elected president, one of the early things, one of the absolute first things I’m going to do, is work on totally knocking out the Johnson Amendment,” Trump told a gathering of conservative pastors during the American Renewal Project’s Pastors and Pews event in Orlando in August.
The issue even was included in the Republican Party’s 2016 platform: “(W)e urge the repeal of the Johnson Amendment.”
Jones’ bill was joined by two related bills during the last congressional session, both in September 2016:
- H.R. 6195, the “Free Speech Fairness Act,” was cosponsored by U.S. Reps. Steve Scalise of Louisiana and Jody B. Hice of Georgia, both Republicans. Their bill aimed to amend the tax code to state a nonprofit would not lose its tax-exempt status if it made political statements during the “ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose” while not incurring significant cost. In other words, under the Scalise/Hice approach, a pastor could endorse a candidate from the pulpit, but the church couldn’t spend a lot of money on campaign activities.
- H.R. 6086, the “Protecting Religious Expression Against Censorship and Harassment Act of 2016,” was sponsored by U.S. Rep. Doug Lamborn (R-Colo.). His bill specifically addressed houses of worship, saying they shouldn’t be considered as participating in political campaigns “because of the content, preparation, or presentation of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings.” Lamborn’s bill also would have removed the Johnson Amendment’s enforcement provision.
At press time, Scalise, Hice and Lamborn had not re-introduced related bills in the new Congress.
Additionally, last year U.S. Rep. John Culberson (R-Texas) attached a provision to the House Financial Services and General Government Appropriations bill that would prohibit the IRS from launching any investigations into churches that violate the Johnson Amendment unless the IRS Commissioner himself signs off on it and reports to Congress – a cumbersome process that would make it unlikely for investigations to move forward.
Trump, who was apparently urged to go after the Johnson Amendment by Jerry Falwell Jr., often portrays the provision as an attempt by the government to silence the freedom of speech rights of religious leaders.
“Your power has been totally taken away,” Trump told pastors at the Florida gathering. “You’ve been silenced like a child.”
Ironically, minutes earlier Trump had reminded the crowd he’d been publicly endorsed by Religious Right powerhouses the Rev. Robert Jeffress, pastor of a Texas mega-church, and Falwell, president of the tax-exempt Liberty University in Virginia.
The circumstances of the endorsement do make a difference. Religious leaders may, as private citizens, endorse candidates for public office. They just can’t use the tax-exempt resources of houses of worship or other non-profits to do it.
Americans United and other observers have repeatedly pointed out this distinction, but proponents of church politicking continue to assert that pastors are entirely gagged when it comes to endorsements.
“[R]eligious leaders are free to engage in political speech,” wrote Adam Chodorow, professor of law at the Sandra Day O’Connor College of Law at Arizona State University, in a July article for Slate. “Indeed, many religious leaders, on both sides of the aisle, have endorsed the candidates this election cycle, as they have in the past.”
He pointed to the Rev. Mark Burns, a South Carolina televangelist who opened the Republican National Convention in July by declaring, “Our enemy is not other Republicans but is Hillary Clinton and the Democratic Party.”
The Johnson Amendment does not strip individual freedoms from religious leaders. Nor does it prevent them and their organizations from addressing how their faith aligns with politicized issues like LGBTQ rights, abortion, access to healthcare and so on.
Religious leaders and the heads of non-profits can also weigh in on ballot initiatives, and many do so. In 2016, religious and secular groups holding 501(c)(3) tax-exempt status spoke out on state-level topics such as the legalization of marijuana and increasing the minimum wage.
What the Johnson Amendment does is prevent non-profit entities, including but not limited to houses of worship, from endorsing or opposing specific candidates. Since non-profits benefit by collecting tax-deductible donations, the tax code prevents them from directing that money toward political candidates.
As Chodorow explained it, “Allowing churches (and other tax-exempt organizations) to engage in political activities would create a backdoor way to subsidize political speech.”
Or as Elise Helgesen Aguilar, AU’s federal legislative counsel, wrote on the organization’s “Wall of Separation” blog, churches could become “super PACs that funnel money into elections.”
Americans United has been following the issue of church politicking for decades. The group’s approach is non-partisan. In 1988, Americans United asked the presidential campaign of Jesse Jackson to drop a plan to collect money for the candidate in black churches during Sunday services. Jackson’s campaign staffers insisted they had done nothing wrong, but they agreed to move the collections out of the churches.
In October of 1992, Americans United was stunned to see that the Church at Pierce Creek, a small congregation near Binghamton, N.Y., had placed a full-page ad in USA Today stating that voting for Democratic presidential candidate Bill Clinton was a sin. The church solicited tax-deductible donations to run the ad in other publications.
The church’s pastor, The Rev. Daniel J. Little, seemed to know he was breaking the law. Asked if he had consulted with an attorney before running the ad, Little replied. “Why should we consult attorneys? We have the word of God. … Principle sometimes takes precedent over silly laws.”
Americans United promptly reported the church to the IRS, which revoked its tax-exempt status. Backed by lawyers at TV preacher Pat Robertson’s American Center for Law and Justice, the church sued to get it back.
The case, Branch Ministries v. Rosotti, was a spectacular loss for the Religious Right. A federal district court ruled against the church, and in May of 2000, an appellate court unanimously affirmed the ruling.
Writing for the court, Senior Circuit Judge James Buckley found that “the revocation of the Church’s tax-exempt status neither violated the Constitution nor exceeded the IRS’s statutory authority.”
Four years later, Americans United launched Project Fair Play, a nationwide campaign to educate pastors and lay people about the requirements of federal law. In cases of clear violations, Americans United asked the IRS to investigate.
Religious Right groups, meanwhile, are eager to test the law in court again, despite having lost the Branch Ministries case. Every year, Alliance Defending Freedom, an Arizona-based Religious Right legal group, holds what it calls “Pulpit Freedom Sunday.” Pastors are encouraged to openly violate the law by endorsing or opposing candidates from the pulpit.
While the IRS is notoriously tight-lipped about ongoing investigations, it doesn’t appear that the agency is aggressively enforcing the law. The tax agency, however, insists that it has an enforcement mechanism in place.
During the 2016 election year, Americans United urged people who came across a violation of the law to report it directly to the IRS. AU also sponsored a petition, asking the tax agency to crack down on violations.
Project Fair Play also hosted a “Week of Action” in late September of 2016. The purpose of the event was to educate religious leaders and the general public about the importance of keeping partisan politics out of all houses of worship.
As part of the event, AU hosted a roundtable on Facebook Live, a video streaming service hosted by the popular social media site, Sept. 27. Among the participants was AU Legislative Director Maggie Garrett.
“There are a lot of falsehoods and misunderstandings about the Johnson Amendment,” Garrett told attendees. “A lot of people talk about the Johnson Amendment, and they say that it targets houses of worship … therefore it’s unfair to religion, but that’s just not true.”
Since the election, AU has continued to debunk myths about church politicking. Americans United has also pointed out that not only does the Johnson Amendment protect the integrity of elections, it also ensures the integrity of houses of worship.
Many religious leaders agree.
“Even if the Johnson Amendment didn’t exist, churches should be avoiding endorsing political candidates and aligning themselves with political parties,” Brian Kaylor of Missouri told Church & State. Kaylor has served as a Baptist minister and currently is the editor and president of Word & Way, a Baptist publication, and associate director of Churchnet, an online Baptist network.
Kaylor pointed to research from professors Robert D. Putnam and David E. Campbell, authors of American Grace: How Religion Divides Us and Unites Us, who found that while Americans once tended to choose religious affiliation over allegiance to a political party when the two diverged on issues, the opposite now is true.
“Now, someone is more likely to change churches than to change their politics or their party,” said Kaylor, himself an author whose books focus on the intersection of politics and religion. “That’s a really important warning why it’s dangerous for churches engaging in partisan politics. [They risk playing] into this polarization we’re already seeing in our houses of worship.”
Kaylor is skeptical that most faith leaders or their congregants are interested in politicizing their houses of worship.
The movement to repeal the Johnson Amendment “is not coming from the houses of worship. This is coming from the Washington, D.C., offices,” he said, referring to political activists.
Opinion polls back him up: In September, the Nashville-based evangelical research firm LifeWay Research announced 79 percent of the people they polled felt it was inappropriate for pastors to endorse political candidates during church services.
“I suspect there are a lot of people in the pews who would be pretty alarmed if this coming weekend, their minister got up there and endorsed a candidate or a party because they don’t expect that and don’t think that would be appropriate,” Kaylor said. “I don’t think the widespread support is there. But there are some very loud voices pushing to remove the Johnson Amendment.”
And one of those voices now belongs to the president of the United States.