While it’s perfectly okay for people to have different opinions about what churches should say from the pulpit, especially with regard to politics, what’s not okay is for the federal government—rather than congregations themselves—to be in charge of what is said. And it won’t do to dangle the threat of taxing the church if it won’t comply. That’s why the Johnson Amendment has to go.
The Tax Code’s restriction on political speech by non-profit organizations is popularly known as the Johnson Amendment, named after its sponsor, Lyndon Johnson, who maneuvered the levers of senatorial power to insert the provision into a massive tax overhaul bill in 1954. Congress passed that bill without any thought about its impact on the constitutionally protected freedoms of churches, and Johnson wasn’t targeting them either. It was a rank incumbent-protection measure specifically designed to silence two nonprofit organizations opposing Johnson’s Senate run because they thought he was soft on communism.
With all due respect to a recent Washington Post editorial that accurately observed that “the law and accompanying IRS regulations are not models of legal clarity,” it gets things wrong when it thinks that the Internal Revenue Service can enforce the Johnson Amendment “discreetly and with as much evenhandedness as possible.” Does anyone seriously think that the IRS, which has been at the core of multiple scandals regarding investigations of non-profit organizations—and even struck up a deal as part of a legal settlement to create new secret procedures for investigating churches—can be trusted to do this?
The editorial rightly highlights the vagueness of the law and admits that the Johnson Amendment “unavoidably … puts government in the business of evaluating speech’s content and is bound to have a chilling effect on someone.” That’s an understatement. Just ask any number of pastors, and they’ll tell you they have no idea exactly what is or isn’t prohibited speech when it comes to candidates or elections. So most just say nothing, and only an intrepid few may decide to shoot in the dark and hope for the best. This only magnifies the problem. Pastors are intimidated because they don’t know what the IRS thinks they can or can’t say.
The reason there are few reported instances of enforcement by the IRS is because most churches are afraid of the IRS and the penalties the agency can levy for a misstep. Also, audits are confidential, so no one really knows how many churches have been intimidated into silence by an IRS audit over the years.
As the history proves, the Johnson Amendment is not some grand bargain the government made with churches. First of all, a tax exemption is not a government subsidy—otherwise we’d have to say that the government is subsidizing everything it exempts, including the religious ceremonies of churches. The Supreme Court has made that even more clear by recognizing that the government cannot condition the receipt of something like tax exemption on the surrender of constitutional rights. If that were allowed, the government could mandate that churches which refuse to quarter troops will lose their tax exemption. The argument is preposterous.
Second, fixing the Johnson Amendment doesn’t mean that churches will be turned into political action committees or that dark money will flow from 501(c)(3) organizations into politics because, let’s not forget, churches weren’t under this restriction until 1954. They frequently spoke out on candidates before then, and there was no legal or constitutional crisis. As noted, the Johnson Amendment wasn’t created to address any problem going on with churches because no such problem existed. Churches simply got inadvertently swept up in Johnson’s scheme. As for the fear that nonprofit coffers will be opened to political contributions or expenditures, plenty of legitimate avenues exist to address that concern without keeping in place a law that forces someone to give up a constitutionally protected freedom.
Pulpit freedom won’t truly exist in America until something is done about the Johnson Amendment. My employer, Alliance Defending Freedom, has been and is committed through its Pulpit Freedom Sunday movement to ensuring that every pastor enjoys the right to speak freely from the pulpit on all matters of life, and that the government has no say in what pastors can preach to their congregations.
Erik Stanley is senior counsel with Alliance Defending Freedom and heads its Pulpit Freedom Sunday effort.