Speaking before the Family Research Council, the Republican nominee for president, Donald Trump, called for a repeal of the “Johnson Amendment.” The Johnson Amendment is part of Section 501(c)(3) of the Internal Revenue Code, and prohibits tax-exempt organizations such as schools, hospitals, and churches from participating in political campaigns. The Republican Party’s 2016 platform echoes Mr. Trump and similarly urges repeal of the Code’s prohibition on political activity by tax-exempt entities.
In particular, the “Johnson Amendment” states that an institution tax-exempt under Section 501(c)(3) cannot “participate in, or intervene in (including the publishing or distributing statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” The IRS interprets this bar broadly to prevent, in many situations, personnel of schools, hospitals, churches, and similar tax-exempt entities from expressing political opinions in their institutional capacities.
This provision of the Internal Revenue Code was introduced by then-Senator Lyndon B. Johnson on the floor of the United States Senate in 1954, as Congress debated the recodification of the federal tax law. The Johnson Amendment passed with little discussion. Today this prohibition has become controversial as churches and their ministers claim that the federal tax law improperly prevents them from speaking on matters of public importance.
Congress should modify the Johnson Amendment, not repeal it altogether. Internal church communications should be protected from governmental interference, but tax-exempt institutions should not be used to divert tax-deductible financial resources to political campaigns.
Critics of the Johnson Amendment raise important concerns.
Some of the IRS’s interpretations of the law are troubling as applied to churches and other religious entities. For example, under the IRS’s “issue advocacy” standard, a minister’s sermon could jeopardize her church’s tax-exempt status if the minister from her pulpit supports or opposes abortion rights, same-sex marriage, gun control, the death penalty, or the Confederate flag should the IRS determine this subject to be “a prominent issue” in a current electoral campaign.
Critics of current law occupy their strongest ground when they seek to protect internal communications within congregations. The Johnson Amendment unacceptably entangles church and state insofar as the Internal Revenue Code now requires the IRS to monitor and evaluate discussions within congregations to ascertain if those discussions constitute political campaigning including “issue advocacy.”
Had Section 501(c)(3)’s ban on campaigning been aggressively enforced in the past, American life would have been diminished. Such causes as abolitionism and civil rights were deeply anchored in America’s churches. In particular instances, the “issue advocacy” of churches could have been construed as political campaigning, forbidden by the Johnson Amendment.
The Johnson Amendment unacceptably entangles church and state.
Consider in this context an iconic moment in American history: Martin Luther King, Sr.’s switch of his support in the 1960 presidential election from Richard M. Nixon to John F. Kennedy. Rev. King announced that he now supported Kennedy (despite Kennedy’s Catholicism) because of Kennedy’s telephone call to Mrs. Coretta Scott King. In that call, Kennedy had expressed concern for the safety of Martin Luther King, Jr., recently arrested by the Atlanta police and being held in a Georgia state prison.
Under the IRS’s current interpretation of Section 501(c)(3), this endorsement, had it been made from the pulpit or been construed as an official church statement, could have cost Rev. King’s church its tax-exempt status. It entangles church and state unacceptably for the IRS to monitor and police internal communications within churches, synagogues, mosques, and other religious congregations. The opponents of current law correctly argue that the federal tax collector should not be entangled with churches in this way.
However, these critics press their case too far when they call for complete repeal of the Johnson Amendment. Without some restraints, nonprofit institutions (including churches and other religious congregations) could become conduits for funneling income tax deductible resources into political campaigns. If there were no Johnson Amendment, a church (or a school or a hospital) might agree to receive a tax-deductible contribution from a political donor and then pass those funds to the campaign the donor supports. The proponents of Section 501(c)(3) in its current form correctly raise the prospect of such tax-deductible resource diversion in the absence of some variant of the Johnson Amendment.
Balancing these concerns, the Internal Revenue Code should be modified to permit any kind of internal communication within a church or other religious institution. It unacceptably entangles church and state for the IRS to monitor and police internal communications within churches, synagogues, mosques or other religious congregations. So modified, the prohibitions of the Johnson Amendment should be retained in Section 501(c)(3) to prevent the diversion of tax-deductible dollars to political campaigns.
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