The right way to amend the Johnson Amendment

President Trump, reiterating the position he took during the presidential campaign, has reaffirmed his pledge to “get rid of and totally destroy the Johnson Amendment.”

The Johnson Amendment is the portion of Section 501(c)(3) of the Internal Revenue Code which prohibits tax-exempt institutions from participating in political campaigns. Reflecting the President’s perspective, Representative Walter B. Jones, Jr. of North Carolina has introduced legislation to repeal the Johnson Amendment in its entirety.

Rather than the blanket repeal of the Johnson Amendment proposed by President Trump and Representative Jones, I argue for a more limited statutory safe harbor for the internal communications of churches. Under such a modification of the Johnson Amendment, churches, along with other religious and secular tax-exempt institutions, would otherwise remain subject to the Code’s bar on campaigning.

First Amendment considerations counsel greater protection than current law provides for speech within churches. However, Section 501(c)(3)’s bar on political campaigning by eleemosynary institutions properly deters the diversion of income tax-deductible resources to political campaigns. A more targeted reform of the Johnson Amendment limited to internal church communications addresses the legitimate concerns of churches about their First Amendment rights, while preventing the tax-exempt sector from becoming a conduit for tax-deductible campaign contributions.

Critics of the status quo occupy their strongest ground when they seek to protect internal discussions within congregations. In troubling fashion, current law entangles church and state, as the Code now requires the IRS to monitor and evaluate discussions within congregations to ascertain if those discussions constitute as campaigning. This entanglement is deeply problematic from a First Amendment perspective. Had the Johnson 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.

Rev. Rul. 2007-41 is the IRS’s current administrative interpretation of the Johnson Amendment. Under that ruling, a church’s “issue advocacy” can constitute “campaign intervention” and thus cost the church its tax-exempt status under Section 501(c)(3) of the Code. Whether such issue advocacy is permitted is a fact-based determination with all of the uncertainties that it implies. Among the relevant considerations identified by the IRS is whether the issue being addressed by the 501(c)(3) entity “is a prominent issue in a campaign that distinguishes the candidates.” Under this fact-based standard, a minister’s sermon could jeopardize her church’s tax-exempt status if, on the Sunday before an election, the minister 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.

This entangles the IRS and churches in a troubling fashion and thus raises legitimate First Amendment concerns about the internal autonomy of churches.

However, the proponents of the Johnson Amendment score points when they raise the prospect of tax-deductible resource diversion. Without some restraints, nonprofit entities tax-exempt under Code Section 501(c)(3) could become conduits for funneling income tax deductible resources into political campaigns. This is an outcome no one should favor.

Since the compelling problem is untoward government intrusion into churches’ internal communications, the solution should be targeted to the protection of such church communications. Congress need not repeal the Johnson Amendment in its entirety. Tax-exempt organizations should generally be barred from political campaigning. Congress should adopt a more limited statutory safe harbor for internal church communications. Amending the Johnson amendment in this narrower fashion is the appropriate solution which better balances churches’ legitimate First Amendment concerns about their internal communications with the need to prevent the diversion of tax-deductible resources to political campaigns.

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