On the Table September 2016
Religion and Politics
The Johnson Amendment is a part of Section 501(c)(3) of the tax code, which establishes that charitable organizations are exempt from taxation. The amendment is a condition of that benefit if your organization does not want to pay taxes.
From Politifact : by C. Eugene Emery Jr. on Friday, July 22nd, 2016.
In his acceptance speech at the Republican National Convention, presidential candidate Donald Trump singled out “the evangelical and religious community” for their assistance in getting him nominated.
“They have much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits,” he said.
“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. Their voice has been taken away,” Trump said. “I am going to work very hard to repeal that language and to protect free speech for all Americans.”
We were curious about the issue and whether an amendment — constitutional or otherwise — prevents the practice for religious institutions.
For this fact-check, we’re relying largely scholarly articles in the Denver University Law Review, the Case Western Reserve Law Review, Boston College Law Review.
The restriction is actually a law, not an amendment, and it isn’t exclusive to religious institutions.
Lyndon Johnson is best known as America’s 36th president, the Texan who assumed the office when John F. Kennedy was assassinated in 1963. Texas politics can be rough, and Johnson knew how to play that game. Therein lies the origin of the “Johnson amendment.”
The restriction was championed by LBJ in 1954 when Johnson was a U.S. senator running for re-election. A conservative nonprofit group that wanted to limit the treaty-making ability of the president produced material that called for electing his primary opponent, millionaire rancher-oilman Dudley Dougherty, and defeating Johnson. There was no church involved.
Johnson, then Democratic minority leader, responded by introducing an amendment to Section 501(c)(3) of the federal tax code dealing with tax-exempt charitable organizations, including groups organized and operated exclusively for religious, charitable, scientific, literacy and educational purposes, or to prevent cruelty to children or animals. It said, in effect, that if you want to be absolved from paying taxes, you couldn’t be involved in partisan politics.
There was no record of any debate around the amendment.
“The logical argument favoring such an amendment is that those corporations qualifying for the section 501(c)(3) tax subsidy should not be permitted to directly or indirectly use that subsidy to support candidates for office,” said Michael Hone in the Case Western article.
However it was likely, he said, that “Johnson was motivated by a desire to exact revenge on the foundation he believed supported his opponent and to prevent it and other nonprofit corporations from acting similarly in the future.”
Nonetheless, “Subsequently it proved to have a profound effect on how thousands of tax-exempt organizations — including churches — dealt with issues relating to political campaigns,” according to Patrick O’Daniel of the University of Texas School of Law in the Boston College article.
The law says all such organizations “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” That includes contributions to political campaigns and any form of public statement for or against a candidate or group of candidates.
Violating the restriction could result in the revocation of the organization’s tax exempt status and the imposition of taxes.
Nonpartisan, unbiased voter education or similar activities such as church-organized voter registration drives are allowed.
Historically, that hasn’t stopped some religious organizations from issuing endorsements anyway.
O’Daniel has a list of examples. To cite two from 2000:
Rev. Jerry Falwell told worshippers at the Genoa Baptist Church in Ohio to “vote for the Bush of your choice” and “We simply have to beat (Al) Gore.”
That same year, a pastor at a Bronx church who supported Hillary Clinton’s run for the U.S. Senate at the time, substituted her opponent’s name for Satan during a hymn.
“In the face of lackluster opposition by the Internal Revenue Service, the Democrats and Republicans . . . continue to use the literal bully pulpits of the churches to preach to the party faithful,” O’Daniel wrote.
Nonetheless, the threat of losing tax-exempt status persists as long as the law is in place, and politically-minded religious groups, particularly evangelicals, have regarded it as a suppression of free speech and an entanglement of the IRS in the operation of their religion.
In 2008, for example, pastors in 20 states organized to give politically-oriented sermons to protest the law, according to the Pew Research Center.
The GOP platform has picked up that cudgel, calling for the repeal of that portion of the tax law.
The Johnson amendment survived court challenges in 1983, 1990 and 2000, according to Pew.
It’s important to note that the prohibition is not just restricted to religious institutions. It’s nonprofit charitable organizations in general.
From The Real Rules
SUMMARY: THE THREE-POINT SYSTEM
The IRS regulations on the activities of congregations can be summarized as follows:
- ISSUE ADVOCACY: Without limits on time, effort and expense, congregations and theirrepresentatives may engage in issue advocacy through activities such as educating and mobilizing congregants and the general public. Example: encouraging the public to show concern for global warming by reducing carbon emissions. Please note that issue advocacy is only acceptable if it does not involve political campaign intervention (see below).
- LOBBYING: Within narrow limits on time, effort and expense, congregations and their representatives may engage in lobbying—defined by the IRS as advocating for or against specific pieces of legislation—as an “unsubstantial” portion of an organization’s activities. The IRS has not provided a strict rule for what constitutes “unsubstantial,” and evaluates on a case-by-case basis. However, courts and the IRS have ruled in the past that lobbying activity constituting 5% or less of total activities is acceptable. “Total activities” includes the total amount of money, staff, and volunteer time that goes into running the organization. While the 5% amount is not a strict rule, it can be used as a guidepost for an organization’s lobbying activities. Example: encouraging a city council, state legislature, and/or Congress to pass a particular law to reduce carbon emissions.
- POLITICAL CAMPAIGN INTERVENTION: There is a total limit on partisan activity, which the IRS calls political campaign intervention. Congregations and their representatives can do nothing that advocates for or against candidates for public office or political parties. This includes fundraising on behalf of candidates and donating meeting space, among other things. Example: supporting a particular candidate or party because of their stance on carbon emissions. Election-related activities such as candidate questionnaires and forums may be acceptable if certain guidelines are followed; consult section C., “Political (Electoral) Activities” of this guide for details.
The restrictions on lobbying and political campaign intervention described here apply only to a congregation as a legal entity, or to a person or group speaking in the name of the congregation. A minister or congregation member may freely engage in these activities as an individual. However, if the person(s) are identified by or likely to be associated with the congregation, it may be helpful to clearly state that they are speaking as individuals.
- Is it appropriate for places of worship to advocate for one candidate or another? What would be a positive outcome of this? What would be a negative outcome of this?
- Do you think it would make a difference in an election if clergy could preach for or against a candidate from the pulpit? In the past, has it made a difference, since some have anyway?