WASHINGTON – On Feb. 2, President Donald Trump returned for a brief moment to a recurring issue facing his administration: the Johnson Amendment. At the National Prayer Breakfast, he told the attendees,“Among those freedoms is the right to worship according to our own beliefs. That is why I will get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that — remember.”
![[Public Domain]](https://wildhunt.org/wp-content/uploads/2017/03/religionpolitics.jpg)
[Public domain.]
At this moment, I would like to thank the evangelical and religious community in general who have been so good to me and so supportive.You have much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits. An amendment, pushed by Lyndon Johnson many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views. I am going to work very hard to repeal that language and protect free speech for all Americans.
What is this Johnson Amendment, and what is its relationship to religious freedom? How does it affect the greater Pagan, Heathen, and polytheist communities in the U.S.?
History of the Johnson Amendment
The now-famous tax code change was implemented in 1954, after being passed by a Republican congress and signed into law by President Dwight D. Eisenhower. It’s name is taken from Lyndon B. Johnson who, at the time, was a senator from Texas. As the story goes, in 1954, Johnson was running for reelection against 30-year-old Dudley Dougherty. While Johnson had only won the previous election in 1948 by 87 votes, he was reportedly expected to easily to beat Dougherty in the primary race.
However, during the campaign process, Johnson vocally opposed the ongoing McCarthy trials and its related fear-mongering. Contrary to that, Dougherty was running on platform that supported the trials and the government’s aggressive attempts to stop the spread of communism in the U.S.
During the campaign, several large nonprofit organizations stepped in to back Dougherty, including Fact Forum and the Committee for Constitutional Government. These wealthy secular groups avidly supported the government’s anti-communist efforts and, as result, they publicly engaged in electioneering on behalf of Dougherty.
Sen. Lyndon B. Johnson (D-Texas) 1954 [Public Domain]
In that light, his motive appears to be one of personal political profit and not one based on ideology. At the same time, the move does demonstrate Johnson’s distaste for McCarthyism and the ongoing so-called “witch trials.”
Regardless of Johnson’s motive, there is no evidence to suggest that religious freedom factored into the debates at all. The “separation of church and state” was not a founding issue. As noted above, the two main nonprofits that inspired Johnson’s action were both secular. Moreover, it appears that the introduction of the new tax code was not considered controversial in any way. In fact, there is little evidence of congressional debate.
The code
The Johnson Amendment has been part of the IRS tax code since that time, more than six decades. It limits nonprofits of all kinds from engaging with political campaigns. Originally it was written to prevent only the support of a candidate. However, the code was amended in 1987 to include activity that would directly oppose a candidate. Looking at the text itself, the IRS says:
The law prohibits political campaign activity by charities and churches by defining a 501(c)(3) organization 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 (from www.irs.gov).
The constitutionality of the Johnson Amendment was challenged in the 1990s by the evangelical organization Branch Ministries. During the 1992 election cycle, the organization had placed advertisements in newspapers urging Christians not to vote for Bill Clinton. The IRS subsequently revoked its nonprofit status, and Branch Ministries decided to challenge that decision in court.
The organization’s board stated that they were “victims of selective prosecution” and that the IRS’ decision was made based on the ministries’ political and religious position.
In 1999, the U.S. District Court in Washington D.C. ruled against Branch Ministries, saying, “The government has a compelling interest in maintaining the integrity of the tax system and in not subsidizing partisan political activity, and Section 501(c)(3) is the least restrictive means of accomplishing that purpose.”
The court’s opinion also notes that there was no evidence to suggest that the IRS decision was politically motivated. Branch Ministries appealed in 2000, but the higher court only affirmed the 1999 decision.
It is important to note that the Johnson Amendment is different from other nonprofit IRS code restrictions with regard to government or political activity. While the Johnson Amendment strictly forbids campaign involvement, the IRS itself allows for a limited amount of other politically-based work, such as lobbying and speaking out about pending legislation or court cases. The differences are outlined on the IRS website.
Johnson Amendment in practice
As noted earlier, the Johnson Amendment applies to all nonprofits, including many very well-known Pagan, Heathen, and polytheist organizations. For example, The Wild Hunt falls under this category as does Gods and Radicals; two media organizations that are not churches or houses of worship. The code affects large national groups such as the Covenant of the Goddess, Circle Sanctuary, the Aquarian Tabernacle Church, and The Troth, as well as community-focused groups, event organizations, and churches such as Twin Cities Pagan Pride, CAYA Coven, and EarthSpirit Community.
Anytime a group states that it has been granted 501(c)3 status, the Johnson Amendment limitations apply. The leaders of these organizations are not permitted to speak for or against a candidate running for public office. If they do so, the organization risks losing its tax-exempt status. As legal precedent shows, the courts will support the IRS in any such challenges.
When asked in a TWH interview about the fine line between the allowable political activity and the limits stated in the Johnson Amendment, attorney Brandon Borgos explained, “Electioneering is the term we are looking for here. You can talk about issues, but once that goes into supporting or opposing candidates or specific legislation, no dice. Then we are in electioneering territory.”
Borgos goes on to say, “Organization leaders can’t make partisan comments at their official functions and definitely not in their publications.
“Now, if it was in an unofficial capacity at an unofficial event and had the caveat that this was that leader’s personal views and weren’t reflective of or intended to represent the organization’s views, that would be just fine,” Borgos adds, but that is, as he suggests, a grey area. There are risks.
Borgos noted that the IRS does, in fact, revoke tax-exempt status from “tons of organizations” each year for violating its rules.
The controversy
The question then becomes whether the tax code itself is unconstitutional by limiting freedom of speech, or is the code successfully doing exactly what it was meant to do, and “protecting the integrity of the tax system” by not allowing the government to “subsidize partisan political activity?”
That is one of the many points made by those who support the code’s protection. The government should not be “subsidizing partisan political activity” regardless of a nonprofit’s mission and purpose. Religion, in this case, is not a factor in the argument to keep the code.
However, in the most recent conversations on the topic, religion remains the focus, more specifically a clergy person’s right to free speech. That is not surprising in a political environment in which much of the division is being scored along lines of religious belief. Even though the code applies to all nonprofits and its origins are secular, the current argument remains focused on a church leader’s right to free expression.
Last week, the members of Our Freedom: A Pagan Civil Rights Coalition released a statement that says, “The leaders herein undersigned oppose any effort to rescind, reverse, and/or repeal the Johnson Amendment. Since 1954 it has been a bulwark in the tax code where it has reinforced both the Establishment Clause and the Free Exercise Clause of the First Amendment.”
The group is concerned that with the code removed many minority religious voices will be unheard due to the much larger and more populous religious majority.
Americans United (AU), a nonprofit itself, goes a step further, saying, “[Repealing the Johnson Amendment] would threaten religious freedom by opening up houses of worship to being used as political candidates’ campaign offices or as a means of funneling money to political candidates.” AU added its name to a list of 85 nonprofits that oppose removal of the code. That list includes both religious and secular organizations.
In that respect, the Johnson Amendment is not unconstitutional at all. Rather, it supports the First Amendment’s implied separation of church and state.
AU also suggested that the Johnson Amendment not only protects the “integrity of the tax system” but also the “integrity of a nonprofit.” With the code in place, it is clear that donations are being donated and used to promote the nonprofit’s stated mission and not electioneering.
Borgos expressed the same idea, saying that a repeal might result in people donating to nonprofits, religious or otherwise, just to support the leader’s political electioneering.
On the other side of the coin, there are many that do support the amendment’s removal, including Pagans. One of our regular readers said in a comment, “I’m of mixed mind on the Johnson Amendment. I agree with the reasons it was created and the reasons for trying to preserve it, but on a practical level, it has been virtually worthless because it has never been enforced.”
Is it being enforced? Can it be enforced? Large public violations, such as the efforts of Branch Ministries, can be caught. However, weekly speeches, lectures, and conversations not made in the public eye are easily overlooked and never seen. How much does that matter? And, is the problem in its enforcement rather than the amendment itself?
Either way, the opposing view point is that the Johnson Amendment limits the freedom of speech of clergy persons, and that idea is the rally cry being taken up by Trump, the Republican party, and a number of large Christian organizations. One such organization, the ACLJ, writes, “Our nation once had a longstanding tradition of church involvement in the political activity of the day. It was previously commonplace for pastors to preach about political issues and candidates.”
The ACLJ argues that, since Johnson’s original purpose was one of personal politics, the amendment is unconstitutionally preventing churches from speaking out, a tradition that is “longstanding.”
Free Speech Fairness Act
The current effort to repeal the 1954 tax code does not rest solely with President Trump, although he has been the most vocal. This intent was also written directly into the Republican party’s 2016 platform under the “Religious Liberty” subheading. It reads:
We value the right of America’s religious leaders to preach, and Americans to speak freely, according to their faith. 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 (p. 18).
The GOP has not wasted any time. On Feb. 1, the day before Trump’s prayer breakfast speech, Rep. Steve Scalise (R-LA) introduced to the House the Free Speech Fairness Act (H.R. 781). This piece of legislation does “totally destroy” the Johnson Amendment, but it does offer greater opportunity for nonprofit organizations to engage in political speech with regard to campaigns. The summary reads:
This bill amends the Internal Revenue Code to permit a tax-exempt organization to make certain statements related to a political campaign without losing its tax-exempt status. An organization may not lose its tax-exempt status under section 501(c)(3) or be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any statement that: (1) is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (2) results in the organization incurring not more than de minimis incremental expenses.
In other words, HR 781 would allow nonprofits to participate and intervene in political campaigns, for or against a candidate, if the actions are part of the “ordinary course and customary activities” of the organization’s work and don’t cause the organization to incur an excess of expenses. That language modifies the Johnson Amendment but does not “totally destroy it.”
That change, if enacted, will apply to all nonprofits, not just churches. That is an important point. While religion, specifically free speech for clergy, remains the driving force behind the movement to repeal the Johnson Amendment, it is only the fuel for the fire. Churches make up only one small portion of the large nonprofit sector, and the change will affect the entire sector as a whole.
Then again, a significant portion of the largest non-profit U.S. organizations do have strong and notable religious affiliations.
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In an earlier TWH discussion of the Amendment, someone claimed that at some point recently a group of conservative Christian churches deliberately and in concert violated it with explicit candidate support from the pulpit, and the IRS didn’t twitch. I just did a quick google of the history of the Amendment and find no reference to that, but it kind of strikes a chord. Could that party return to the discussion and lay it out again?
Look up pulpit freedom sunday
Thanks! What I gleaned was that the IRS continues to drag its feet on enforcement — not surprisingly; there are some 1500 pastors involved and the logistics of enforcement would induce migraines — to the disappointment of secularist litigants. This does not settle well with the citation in the article that the IRS yanks the status of “tons of organizations” for violations.I note that most pastors support the Johnson Amendment or at least oppose what it penalizes. I guess I’m at least in the latter camp. The minister of the UU church I belonged to in 1968 broke the Johnson Amendment and made a pulpit endorsement and I immediately felt like a spiritual stranger. I don’t think that’s good homiletic policy.
I don’t think it’s a matter of logistics where enforcement is concerned. It’s simply a lack of political will to enforce any laws against churches which would shriek “persecution” even louder than they do already. I’ve only come across one instance where a church lost its exempt status, and that involved a case in 2000 where the congregation took out full page ads endorsing a candidate. Despite numerous instances of intentional and very public violations of the Johnson Amendment, the IRS apparently rarely, if ever, even initiates investigations, much less revoke any church’s exemption.
You may be right. I wish this post had mentioned Pulpit Freedom Sunday.
Excellent informative essay. Thanks!
Let me point out that tax exempt status is at best a “devil’s trade.” In exchange for the tax deduction, the organizations (and sometimes the officers) lose their political voice and the IRS gets itemized lists of what was donated and who donated it.
There’s also the small bit that if there are tax deductions, then by definition taxes are too high.
However, ❝Religion cannot be allowed the coercive power of government. Government cannot be allowed the moral justification of religion.❞
They don’t lose their political voice, they lose their electioneering voice. A subset, not the whole thing.Anyone whose desire to contribute anonymously is strong enough to forego the tax deduction personally is still free to do so.Tax deductions are not evidence that taxes are too high. They are evidence of a government that uses the tax code to steer capital in directions it could not mandate by law.Please don’t take this as support for the Johnson Amendment, only of accuracy.
The 2nd Amendment doesn’t deal with subsets. The incredibly ironic bit is the history of churches in American politics, particularly the abolitionist movement.
I didn’t say it was a complete list, I said it was an itemized list. It is enough to find “known associates” though.
Tax deductions are evidence that taxes are too high. It’s also evidence of diverting capital, taking it away from unapproved activities and moving it towards approved activities. There’s more, but it involves a long examination of progressive tax systems and it won’t add anything but noise to our conversation.
Churches can be quite vocal about movements and issues without running afoul of the Johnson Amendment. And courts have upheld it throughout its history, so perhaps the First Am is more sectionable than that. In any event, candidate politics isn’t forbidden — a clear infringement — but risks loss of exempt status. In any event, I’m unsure enough about the wisdom of the Johnson Amendment that I’ve made plans for what I’ll recommend to the leadership of my UU church in case it’s repealed.
Abraham Keteltas, Samuel West, Jonathan Mayhew, Peter Muhlenberg, and Samuel Cooper were just some of the colonial era ministers. In England for a while, the American Revolution was called the Presbyterian Revolution because so many Presbyterian pastors were involved.
But the abolitionist movement and the American Civil War was when things really got going. Look at names like John Todd, Joshua Leavitt, Benjamin Bradford, Luther Lee, and Samuel Salisbury. Without these men and their churches, the abolitionist movement would never have blossomed. Christians aren’t perfect and I am certainly a critic. But it took British and American Christians to end the slave trade, they deserve credit for that.
The 1950s-1960s civil rights movement was heavily rooted in churches, especially in the American south.
As I said, the tax exempt status is a “devil’s trade” intended in large part to silence churches.
I celebrate those heroes no less than you. And they didn’t have to endorse candidates for public office to do it. I was around for Martin Luther King’s public ministry, and he never endorsed a candidate.
Did you bother to check what they said from the pulpit?
If you can prove me wrong, go ahead.
Skipping the research again I see.
I provided examples which at the very least would have violated the propaganda restrictions of the Johnson amendment if it had been in effect then. Yet those are a valued part of American history and important benchmarks in religious freedom.
A little further examination would have shown that American churches and synagogues have traditionally called politicos out on bad ideas and bad behavior.
I’m afraid you have it backwards. You cited those heroic names to the effect that the Johnson Amendment would have stifled some essential American prophesy of the pulpit. I asked you to prove it. You haven’t yet. The burden of research is on you.Calling out politicos on bad ideas and bad behavior is a lot broader than supporting a political candidate, which is what the Johnson amendment is about.Let me repeat that I have my own doubts about the Johnson Amendment on these First Amendment grounds. If I like it, it’s because it keeps churches from becoming tax-exempt PACs.
It’s not about “prophesy of the pulpit.” It’s about moral authority. Ideas like liberty, revolution, and slavery were talked about during worship. In those days more than anything else including the press, worship is where those ideas were set out in detail by men who made their living communicating well and clearly. I admit it’s a part of history that is often overlooked, but it exists none the less.
Take a closer look. The Johnson amendment covers both endorsement and anti-endorsement, intervening in political campaigns is prohibited. It also limits lobbying, propaganda, and other political activity.
Pagans of all people know what a bad idea it is when a politico wraps themselves in the flag and waves holy writ as justification.
BTW, I have to give you points for that phrase “prophesy of the pulpit.” It’s poetic if not exactly accurate in this case.
I don’t see that the Johnson Amendment, even when it appeared to be an active piece of law, has ever silenced religious leaders in any significant way. Apart from direct electioneering for candidates, the law places no restrictions on issues-based political involvement, and churches of all stripes have been more politically outspoken since the Johnson Amendment than at any other time since the slavery debate.
The entire modern Civil Rights movement – largely church based – took place in the context of the Johnson Amendment. Many churches became heavily active in protests against the Vietnam War, nuclear proliferation, specific questions of foreign policy and of course the running battle over abortion. The entire culture war over gay rights was fought, on both sides, by religious groups.
As just one example, virtually every Christian and Jewish group with any national stature took public and explicit positions on Prop 8 in California in 2008. The Roman Catholic Church and Mormons together plowed well over $20 million into the campaign to pass it. They also furnished most of the foot soldiers in door to door canvassing.
This was all coordinated by church leadership, and it wasn’t some catch-me-if-you can protest against the law. it was (and is) perfectly legal. Churches can take positions on ballot initiatives and specific pieces of legislation. Pastors can rally support for these measures and they can spend money on lobbying activities (up to 5 percent of their operating budget. Even apart from that, pastors can personally endorse any candidate they want, so long as they do so in the capacity of a private person and not from their position or church property.
The idea that the Johnson Amendment is silencing religious voices makes wonderful grist for Christian persecution narratives, but it has no basis in reality.
With that said, I don’t see much point in trying to preserve a law which is never enforced. As it stands, it’s just another piece of red meat to rile up the Evangelical Tea Party orcs in their belief that liberal elites and foreigners stole American from them. I think it’s time to get the government out of automatic, across the board tax exemptions for religion, and if we’re going to mix religion and politics, let everybody get in the game. Let’s see how Trump’s “pulpit freedom” song changes when churches start taking out major ad campaigns against him in 2020. It’s not inconceivable that the Catholic Church might not endorse his opponents. My bet is that Trump will end up piling bricks onto the wall of church-state separation faster than the ACLU can mix the mortar.
You’re right, that part of the law is seldom enforced. I was waiting for someone to bring that up.
So here is my next question. If the law as it exists is so potentially prone to abuse even as it is not enforced, why does the Johnson amendment exist?
My theory is that it was one of Johnson’s infamous deals. In the early 1950s, the civil rights movement was just getting started, but the split was already there. One side wanted to work within the system making sure that existing law was enforced. The other side wanted to create radical change and separate from the US if necessary. There was rivalry between the two sides, and at the time no one was sure which side would dominate. Johnson saw the potential need for what today we would call the nuclear option. As long as everything proceeded peacefully, the government would never need to use the stick. Meanwhile, everything was nicely registered and reported to the government, “just in case.”
It wasn’t the first time the IRS was used to monitor Americans and it wouldn’t be the last.
This misrepresents what you are calling the MLK side. They were not hoping existing law would be enforced; existing law supported segregation. They wanted to overturn that aspect of existing law by means of peaceful confrontation. The major operational difference between the sides, as you call them, was whether they were willing to work with whites to reach their goals.
You’re right. I should have said existing Constitutional law, that was my mistake.
That wasn’t the only operational difference, but it certainly was one of the most important. Bryan Burrough points out in Days of Rage that some “blacks” were disappointed as more moved north and they didn’t instantly get more of what they felt had been denied them.
Existing state and local law in the south supported segregation, most Federal law did not. It varied in other states, not so much in the West but heavy in union states. When Truman reversed Wilson’s segregation of the armed forces, the writing was on the wall.
The First Amendment guarantees the freedom of speech of citizens, not of organizations. Pastors and priests and soforth remain free to do electioneering as long as they are not speaking for the organization.
As for your tax argument, it is an always has been BS on the face of it.
It’s not freedom of speech per se that is at the focus of the Johnson Amendment controversy, but the free exercise of religion, another part of the First Amendment.
It’s not, though. It’s about who gets tax exempt status. Which the government absolutely has the right to regulate.
You know, that technical aspect doesn’t get ballyhoo’ed as much as infringement on the free pulpit.
Under what part of the 1st Amendment is Congress granted the power to regulate free speech?
Under what part of the 1st Amendment is Congress granted the power to regulate religion?
Yet the Johnson amendment does both.
Which tax argument? The fact that deductions mean that taxes are too high? Or that government uses a progressive tax code to encourage some behaviors and discourage others?
Can you show that either argument is BS?
It does not regulate religion. It doesn’t even regulate speech. It regulates tax-exempt status.
Yes, the “taxes are too high” BULLSHIT argument. Can YOU show that it has even the SLIGHTEST merit? It’s your assertion.
Actually it does.
The perception in America is that you are not a “real” church unless you have tax exempt certification. Just like a few years back when conservative groups were having problems getting 503 certification, most people don’t want to give money unless they know that the IRS is not going to audit them. The easy path is to do what the government tells you to do. That is not necessarily the right thing. Once a group has the certification, they are bound by the regulations if they wish to keep the majority of their donors. Those regulations are subject to change at any time, and have gotten more restrictive since the Johnson amendment was passed.
Every dollar that the government collects in taxes reduces individual purchasing power. Regardless of what some experts will tell you, the economy is driven by the individual buying goods and services and not by government regulation. More money, more purchases (or savings). Less money, more credit, less purchases and less savings.
Even if you think that only the “rich” pay higher taxes, that means less money for things like jobs, equipment, and expansion. That means less economic growth.
The second order effects of special taxes can be even worse. A few decades ago, Congress put out a luxury tax on high end planes, yachts, high end boats, and cars. All those industries took a major hit. Building and storing yachts and high end boats still haven’t recovered.
It gets worse. Thanks to payroll withholding and “standard” deductions, the government effectively gives itself no-interest loans from your money. Multiply that by a hundred million or so and you get into some serious cash.
These are examples from taxes. I haven’t discussed currency manipulation (inflation) or spending.
Surely by your (again, bullshit) argument, there should be no tax exempt organizations at all, because the very existence of them proves taxes are too high.
Government money goes back into the community and absolutely does stimulate economic growth. The rich actually mostly sock money away (and pay LOWER taxes than the rest of us by hiding their money) and mostly DON’T spend it, while money that goes to infrastructure pays wages which DOES stimulated growth. Your theories have been widely disproven.
And we badly need tax money to be spent on infrastructure. Our bridges, our roads, our sewer and water systems and more are crumbling. We need MORE government spending, in the areas where it will do the most good for the most people.
“Surely by your argument, there should be no tax exempt organizations at all, because the very existence of them proves taxes are too high.”
Yes.
At the very least, no tax exempt organizations would mean fewer bureaucrats to monitor compliance and regulate.
“Government money goes back into the community and absolutely does stimulate economic growth.”
It does that by displacing private investment. Private money wants a return on investment, which means maintaining facilities and periodic upgrades. Except for corporatism, companies stay in business by making their products better, cheaper, and more available.
“The rich actually mostly sock money away…”
Um, no they don’t. There isn’t a money vault or a stuffed mattress, smart people put their money to work. Some buy stocks, some buy bonds, some invest in companies. Unless the money earns a higher yield than the rate of inflation, it’s worth less.
“…and pay LOWER taxes than the rest of us…”
According to the National Taxpayer Union Foundation, in 2014 the top ten percent of income earners paid 70.88% of the income tax.
Spending is not the same as taxing. Government at all levels has done a rotten job of maintaining facilities, much less upgrading them. Private ownership does wonders, as things like the Empire State Building show.
Government usually puts money aside for infrastructure and then diverts the money into more “essential” things. It’s one of the oldest tricks in government accounting. Then more money is needed.
What’s more, government is a lousy judge of where to spend and what to spend it on. Just as one example, less than a handful of VA hospitals are worth it, but we keep tossing more and more money at the problem.