The long - and surprising - history behind the IRS ban on churches endorsing political candidates
Posted July 27, 2016
Among the many policy positions embedded in the 2016 Republican Party Platform is a call to repeal the Johnson Amendment, a controversial Internal Revenue Service regulation that has come under fire from churches and religious freedom advocates in recent years.
The little-known tax provision applies exclusively to 501(c)(3) nonprofit organizations, precluding them from endorsing — or campaigning against — candidates for federal elected office.
The rationale behind the Johnson Amendment is that nonprofit organizations and churches are exempt from paying certain taxes and, therefore, should not be permitted to show power or sway in the election of candidates.
But many Republicans and conservatives have long held that the amendment, which was authored by then-Texas Democrat Sen. Lyndon Johnson, unfairly constrains churches' First Amendment rights, a claim laid out in the 2016 GOP platform.
"Republicans believe the federal government, specifically the IRS, is constitutionally prohibited from policing or censoring speech based on religious convictions or beliefs, and therefore we urge the repeal of the Johnson Amendment," the platform reads. "We pledge to … safeguard religious institutions against government control."
The plank against the Johnson Amendment has its critics, many of whom accuse the GOP of misrepresenting the debate at hand.
"Claims that there exists a ban on political activity by churches and faith leaders are simply false," said Michael De Dora, director of public policy for the Center for Inquiry — a group that works to foster secularism in society. "The Johnson Amendment does not prohibit political activity by churches and faith leaders. It prohibits tax-exempt organizations, including both houses of worship and non-profit organizations, from directly or indirectly endorsing or opposing political candidates."
He explained that both churches and faith leaders are legally permitted to speak out on political and social issues, including abortion, poverty, doctor-assisted suicide, health care and a variety of other matters.
De Dora added that religious organizations openly engage in lobbying, spending hundreds of millions of dollars per year to make their voices heard on Capitol Hill.
"This includes many large Christian organizations such as the U.S. Conference on Catholic Bishops, Ethics & Religious Liberty Commission of the Southern Baptist Convention, and Family Research Council," he said.
But Christiana Holcomb, an attorney with the Alliance Defending Freedom, said the issue is more about whether the government should control political speech coming from the pulpit.
"Pastors should be the ones to decide what they preach from the pulpit … that should be a pastor’s decision, not the IRS," Holcomb told the Deseret News.
Republican presumptive nominee Donald Trump echoed similar sentiments as he introduced his vice-presidential pick, Indiana Gov. Mike Pence.
"You are absolutely shunned if you're an evangelical if you want to talk religion; you lose your tax-exempt status," Trump said. "We’re going to get rid of that horrible Johnson amendment and we're going to let evangelicals, we’re going to let Christians and Jews and people of religion, talk without being afraid to talk."
The IRS defines a nonprofit governed by the political campaign activity ban as one "which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."
According to the IRS website, Congress approved the amendment banning political endorsements by nonprofits in 1954. One of the main critiques of the amendment has been that Johnson's primary motive was to silence two secular organizations that had opposed his candidacy for the Senate.
Johnson was battling accusations that he was soft on communism, and the two organizations in particular were reportedly opposed to his re-election campaign on that basis, wrote retired Purdue University sociology professor James D. Davidson in a 1998 article for the Review of Religious Research.
"Johnson was not trying to address any constitutional issue related to separation of church and state; and he did not offer the amendment because of anything that churches had done," Davidson wrote. "Churches … were banned because they have the same tax-exempt status as Facts Forum and the Committee for Constitutional Government, the right-wing organizations that Johnson was really after."
Congress revisited the Johnson Amendment in 1987 to clarify that the law also prevents 501(c)(3) organizations from openly opposing candidates as well.
The law's secular origins rankle conservatives and religious groups that resent how organized religion has become the amendment's main target.
"The IRS has steadfastly maintained that any speech by churches that the IRS could construe as supporting or opposing candidates for government office, including sermons from the pulpit, can result in loss of tax exemption," wrote the Alliance Defending Freedom.
ADF notes that despite America's long history of churches speaking out about candidates on the basis of theological belief prior to the law's passage, some pastors and churches have allowed the Johnson Amendment to squelch their political speech.
Despite the amendment's roots as a protective political tactic, De Dora said it still has merit.
"As is the case with most legislation, there is reason to believe then-Senator Johnson had in mind political considerations when he sought to pass the Johnson Amendment," he told Deseret News. "But then, the origin of the law should be considered separate from the soundness or impact of the law."
De Dora continued, "We would suggest the Johnson Amendment is a fair law that prevents organizations exempt from paying certain taxes in the U.S. from influencing election outcomes."
'Pulpit Freedom Sunday'
The ADF contends the amendment requires the IRS to monitor churches' speech and determined if and when that speech becomes too political — something the firm argues isn't a viable role for government.
Challenging government to enforce the law, the ADF has asked churches across the country to join in the annual Pulpit Freedom Sunday. Launched in 2008, the initiative encourages pastors to preach an "election sermon" from the pulpit in an attempt to ignite a court case that could eventually overturn the Johnson Amendment.
"When you sign up to preach an election sermon, you are doing what the Constitution has always protected, and if the IRS chooses to use the Johnson Amendment against you, contact us," reads a note to pastors on the ADF website. "We’ve been waiting to take it to court."
To date, the IRS has not prosecuted any of the participating churches, although atheist and secular activists have urged the tax agency to look into open these violations.
"Amazingly, these groups have actually provided the IRS self-incriminating evidence of advocating for candidates," De Dora said. "And the IRS has done nothing."
The IRS did revoke the 501(c)(3) status of The Church of Pierce Creek in Binghamton, New York, in the 1990s after it published an ad in USA Today saying that it would be sinful to vote for Bill Clinton.
It was after the IRS lost a 2009 lawsuit over its procedural process in investigating the Living Word Christian Center following the church's endorsement of former Rep. Michele Bachmann, R-Minn., that the agency halted investigations, according to Politico.
The IRS sued the church for refusing to hand over its records, but a judge threw out the case over the fact that a regional commissioner should have been approving church audits. The job, however, had been axed from the agency ranks, meaning that the government was using lower-level IRS staffers, which the judge said was inappropriate.
Atheist activists with the Freedom From Religion Foundation later sued to force the IRS's hand in 2012 and settled with the agency two years later, though the government has reportedly not begun to actively enforce the Johnson Amendment since that time.
That settlement has also sparked a heated controversy with the ADF claiming that the terms of the agreement — and the IRS's purported plans to potentially hold churches accountable — remain a secret.
That battle forges on, as the law firm continues to try and force the IRS to release additional files that pertain to the Freedom From Religion Foundation case.
"Our focus is simply that the IRS’s chokehold on the American pulpit be released," Holcomb said.
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