In July of 2017, then-President Donald Trump sat down for an interview with Christian Broadcasting Network founder Pat Robertson, and bragged about one of his recent accomplishments: “I’ve gotten rid of the Johnson Amendment. […] I signed an executive order so that now, […] ministers and preachers and rabbis and whoever it may be, they can speak. You know, you couldn’t speak politically before, now you can.”
While this statement is, unsurprisingly, false (Trump merely signed an executive order reaffirming that the Amendment applies equally to speech of religious and secular character), it is true that repealing the Johnson Amendment has long been a priority for religious conservatives.
Adopted in 1954, the Johnson Amendment is an addition to section 501(c)(3) of the federal tax code. It forbids charitable and religious organizations— which under section 501(c)(3) enjoy an exemption from income tax, and also receive tax-deductible donations— from engaging in political speech or other activities which support or oppose particular candidates for office. At the time of its passage, the provision was uncontroversial; now, not so much.
The consequences of repealing the Johnson Amendment would be significant; donations to 501(c)(3) organizations, which are both tax deductible for donors and not subject to income tax, could be used to support political campaigns. Furthermore, 501(c)(3) organizations are not generally obligated to disclose their donors, so these charities could instantly become funnels for millions of dollars in anonymous tax-free political contributions.
And while a Congressional repeal of the Johnson Amendment would surely fail under the current administration, it is under threat from another source: the Supreme Court.
Unfortunately, while the Amendment is essential in preventing charities and churches from transforming into massive political fundraising operations, and its repeal would result in the government providing a tax benefit for religious groups to influence elections, it is also almost certainly unconstitutional in the eyes of the current Supreme Court. As far as I am concerned, the only reason the Amendment has survived these last several years is that a challenge to it has yet to appear before the Court.
In fact, it may well be that what has saved the Amendment is the IRS’s infrequent and irregular enforcement efforts. Since 2008, the conservative non-profit Alliance Defending Freedom has organized an annual Pulpit Freedom Sunday, during which religious leaders record politically-charged sermons and send them to the IRS— in hopes of provoking enforcement and creating an opportunity to challenge the Amendment’s constitutionality in court.
These efforts have not yet succeeded, as the IRS has not brought action against any of the religious organizations involved. Avoiding enforcement in order to prevent legal challenges, though, is not a sustainable strategy, and it is worth examining why the Amendment is currently on an uncertain constitutional footing, as well as how it can be fixed to avoid these issues.
Arguments on the constitutionality of the Johnson Amendment are thoroughly explored in Mark A. Goldfeder and Michelle K. Terry’s To Repeal or Not Repeal: The Johnson Amendment. I’ll briefly summarize the three primary arguments these authors consider:
1. The religion clauses of the First Amendment— “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”— are both potentially violated by the Johnson Amendment. While the Amendment does not restrict the right of churches to speak on political issues, it does restrict their right to speak in favor of or opposition to particular political candidates— and though this may be acceptable when church leaders speak about candidates for political reasons, some church leaders may believe they need to speak about candidates religiously (if, for example, they feel that voting for a particular candidate would represent a sin). In penalizing them for doing so, then, some may argue the government is infringing upon the free exercise of religion. Furthermore, by requiring that the government analyze religious speech and make determinations about what speech counts as legitimately religious and what speech counts as purely political, the Johnson Amendment embroils the state in religious affairs, potentially violating the Establishment Clause as well.
2. In light of recent Supreme Court decisions, the Johnson Amendment may also be unconstitutional due to its implications for free speech. In Citizens United, for example, the Court stated that “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations,” and as Goldfeder and Terry point out, “If Citizens United stands for the proposition that Congress cannot single out certain groups for limitations or suppression of speech, then surely using the tax code to regulate certain organizations’ speech encroaches on their constitutional rights” as well. Proponents of the Johnson Amendment (myself included) argue that it does not ban or limit the political speech of 501(c)(3) organizations, but merely includes political speech as a condition for consideration as a 501(c)(3). The penalty for political speech is not criminal action, but simply that an organization can no longer be considered charitable, and therefore loses the benefits associated with 501(c)(3) status. In this way, the Amendment treats the absence of political speech as a part of the definition of a 501(c)(3), it does not regulate the right of churches to speak politically. That said, the Johnson Amendment’s vagueness in regards to exactly what sort of speech disqualifies an organization from receiving 501(c)(3) benefits is also problematic. As Erik W. Stanley notes in his LBJ, the IRS, and Churches, the Court in Citizens United specified that they would not accept a standard of speech regulation which allowed too much uncertainty, declaring that “First Amendment freedoms need breathing space to survive. We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned.” Since the IRS itself has admitted that the Johnson Amendment “contains no bright line test for evaluating political intervention,” it is clear that Citizens United represents an existential threat to the provision.
3. Lastly, the Johnson Amendment may represent an unconstitutional condition for the receipt of a government benefit. Generally, a condition is considered constitutional if it serves to specify the types of activities or organizations which the government seeks to promote though the benefit in question. To some degree, this is what the Johnson Amendment does; it serves to define the activities the government seeks to promote with the tax benefits under section 501(c)(3) as being non-political charitable activities. But a condition is generally unconstitutional if it seeks to leverage a government benefit to curtail a right. In this case, some would argue that the Amendment forces nonprofits to give up their right to speak politically in order to receive tax benefits, especially since some 501(c)(3) organizations would not be able to exist without these benefits.
Fortunately, some of these issues would be quite simple to resolve. The Amendment could be reworded, for example, to make it even clearer that it simply helps to define which organizations are described in section 501(c)(3) and are therefore eligible for its associated tax benefits, rather than forcing otherwise eligible organizations to forfeit rights in order to receive benefits. Some other issues, however, are more difficult to remedy.
The tax reform bill passed under the Trump Administration in 2017 was initially meant to include a partial repeal of the Johnson Amendment, which Republicans hoped would allow religious groups to speak politically without opening the door to the campaign finance loopholes discussed earlier. The partial repeal would allow groups to speak politically, so long as such activities were “regular and customary” in carrying out their exempt purpose, and so long as doing so caused them to accrue no more than de minimus (incidental) expenses.
But as Ellen P. Aprill points out in her Amending the Johnson Amendment in the Age of Cheap Speech, this de minimus exception still would “have opened the floodgates to campaign intervention by charities and encouraged the establishment of faux charities.” First, since the cost of widely disseminating speech today is no longer high (tweets, livestreams, and blog posts which can reach a large audience are essentially free), requiring that any speech incur only a de minimus expense has the practical effect of nearly eliminating the prohibition on political speech entirely. And there is nothing in the wording of the Amendment to prevent organizations from tweaking ordinary charitable actions to include a political message, while incurring essentially no cost; we can easily imagine, Aprill offers, a healthcare organization which regularly sends out mass mailings, which now signs off their mailings with “Help us in our fight against cancer. Vote for Bob Smith.” Worse, the “regular and customary” stipulation is of essentially no effect as well. New organizations, which can establish their own “regular and customary” activities, would be created for the purpose of exploiting these new rules.
So a de minimus exception is not an effective solution, as it all but amounts to a full repeal of the Johnson Amendment. But the same “cheap speech” which renders a de minimus exception useless also spells doom for one of Aprill’s own solutions; namely, that charities be permitted to speak politically, but also be required to disclose the names of all donors who do not explicitly prohibit the charity from using their contribution for political activities. The problem here is that since, as Aprill notes, charities can speak politically without spending anything, a donor’s prohibition on using his or her donation for political activities has essentially no effect. Donors could avoid having their names disclosed while still supporting the existence of an organization which engages in low-cost but effective political speech.
Our problem, then, is that any prohibition on political speech which results in a 501(c)(3) organization losing its tax-exempt status is likely unconstitutional— but any attempt to allow specific political speech while causing minimal damage to the campaign finance system is likely ineffective.
The solution I find most compelling, and which may offer our best hope for preserving an effective form of the Johnson Amendment which can stand up to constitutional challenges, is discussed by Roger Colinvaux in his article The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition. What Colinvaux suggests is a sort of half-repeal of the Johnson Amendment, removing it from section 501(c)(3) of the Internal Revenue Code but keeping it in section 170.
Section 501(c)(3), as previously discussed, describes those charitable organizations which qualify for an income tax exemption. Section 170, meanwhile, details the deductibility of donations to charities. The Johnson Amendment exists as an addition to section 501(c)(3), but it is also copied-and-pasted into section 170 as part of the definition of a “charitable contribution”: “The term ‘charitable contribution’ means a contribution or gift to or for the use of […] a corporation, trust, or community chest, fund, or foundation […] which is not disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation, and 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.”
Importantly, while Erik W. Stanley notes in his aforementioned LBJ, the IRS, and Churches that the Supreme Court has rejected the idea that a tax exemption offered under section 501(c)(3) is equivalent to a subsidy (“The government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state”), Colinvaux points out that most scholars do view section 170 as providing a subsidy. This is significant, as the Court has generally ruled that the government may not leverage an ordinary government benefit to curtail an entity’s rights, but that it is free to specify conditions on what entities it intends to support through a direct subsidy. Thus, removing the Johnson Amendment from section 501(c)(3) but keeping it in section 170 would almost certainly be constitutional.
The outcome of this arrangement would be that political speech would no longer disqualify an organization from the income tax exemption under section 501(c)(3), but it would disqualify the organization from receiving tax-deductible donations under section 170. This would likely be enough to prevent damage to the campaign finance system and maintain the character of the Johnson Amendment.
First, it would remove the incentive for campaign donors to funnel funds through politically active 501(c)(3) organizations for the associated deduction. Second, Colinvaux notes that for many if not most 501(c)(3) organizations, tax-exempt status offers very little actual tax savings, so the portion of the Johnson Amendment in section 170 seems to carry most of the actual intended effect and the incentive to avoid political speech. Third, this solution would require that charitable organizations which engage in political activities in a given year notify their donors before their tax returns are due that their donations cannot be deducted. As Aprill notes in Amending the Johnson Amendment, “under such a regime, donors who had expected to deduct gifts would be very unhappy.” This would provide additional incentive for 501(c)(3) organizations to avoid political activities. And fourth, this would allow the IRS to enforce the language in section 170 without fear of legal challenges rendering the provision useless. A slightly weaker version of the Johnson Amendment which can be fully enforced is certainly preferable to a full prohibition on political speech which has been regularly flaunted for decades.
Referring to recent Supreme Court decisions which have eroded the constitutional arguments in favor of the Johnson Amendment, Stanley writes in LBJ, the IRS, and Churches: “Put bluntly, after Citizens United, Winn, and Hosanna-Tabor, the Johnson Amendment’s days are numbered.” This seems to be the overwhelming opinion of constitutional scholars in light of recent precedent, the IRS’s internal guidance, and the makeup of the current Court. The Johnson Amendment serves a crucial purpose in protecting our campaign finance system and keeping religion out of our politics; let’s future-proof it before it’s too late.
Note: This is part of the irregular series “From the Intern Desk,” in which college interns for the Secular Coalition for America produce topical editorials on the issues that impact our daily lives. This piece was contributed by Jake Simon.
