The Committee on Appropriations of the US House of Representatives, in a so-called rider to the pending federal budget bill, has proposed significant procedural restrictions on the IRS’s ability to enforce the Johnson Amendment. The Johnson Amendment is the provision of the Internal Revenue Code which prevents all tax-exempt institutions (including churches) from participating in political campaigns. The Committee’s budget rider is the most recent salvo in the ongoing dispute about churches and politics.
The Appropriations Committee proposes that the Johnson Amendment only be enforced against a church if three tests are all met: first, the Commissioner of Internal Revenue must agree that the church in question has engaged in political campaigning. Second, thirty days after making a determination of forbidden church campaigning, the Commissioner must notify the House Ways and Means Committee and the Senate Finance Committee that such a determination has been made. Third, the effective date of any such determination must be delayed for at least 90 days after the Commissioner’s notification to these two congressional committees.
The evident intent animating this proposed budget rider is to impede enforcement of the Johnson Amendment against churches. The Committee’s rider falls short of President Trump’s pledge to “get rid of and totally destroy the Johnson Amendment.” However, if it becomes law, this rider would extend heightened procedural protections to churches potentially running afoul of the Code’s ban on political campaigning by tax-exempt organizations.
The Appropriation Committee’s proposed budget rider is simultaneously too broad and too narrow. The proposed rider provides special procedural protections against all IRS enforcement of the Johnson Amendment as to churches. This cuts too broadly as not all enforcement of the Johnson Amendment is the same. Churches and other religious congregations should not become conduits for sending tax-deductible funds to political campaigns. In this respect, the proposed rider goes too far, giving churches procedural protection for any type of political campaign intervention, regardless of how blatant that intervention might be.
Suppose, for example, that an individual donates to a church with the understanding that the church will funnel that money to a particular candidate. This is behavior no one should favor, yet the Committee’s budget rider, if it passes through, would hinder the IRS from enforcing the Johnson Amendment in this compelling situation. In this context, the proposed rider goes too far, inhibiting enforcement of the Johnson Amendment when vigorous enforcement is appropriate.
But, in terms of internal church discussions, the Committee’s rider is too narrow. The proposed rider does not go far enough in protecting the legitimate rights of religious institutions and their personnel to speak on issues of public policy.
Churches are legitimately concerned that the Johnson Amendment improperly constrains their internal congregational communications. As the IRS currently interprets the Johnson Amendment, the “issue advocacy” of a church or its clergy may cost the church its tax-exempt status. If, for example, a minister delivers a sermon for or against DACA or for or against the Trump Administration’s travel ban, that sermon may cost the church its tax-exempt status if the IRS determines that DACA or the travel ban has been “a prominent issue in a campaign that distinguishes the candidates.”
If it becomes law the Appropriations Committee’s budget rider, while it would erect procedural barriers, would ultimately not protect this church’s tax-exempt status from revocation for such legitimate internal speech on public policy.
The best solution is not the kind of procedural band-aid proposed by the Appropriations Committee. Congress should instead modify the Johnson Amendment to protect internal church communications from all IRS scrutiny. With churches’ rights of free expression thus protected from government interference, the Johnson Amendment should, so modified, remain on the books to preclude the use of all tax-exempt institutions (including churches) to divert tax-deductible resources to political campaigns.
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