This is an article by Amanda Knief. It appears in the current issue of American Atheist magazine, which is sold at Barnes & Noble, Book World, and Books-A-Million bookstores in the United States and at Chapters/Indigo bookstores in Canada. To find a store near you or to subscribe, go to atheists.org/magazine.
Donald Trump, like every president since Dwight Eisenhower, attended the annual National Prayer Breakfast in Washington, D.C. on February 2. The event is sponsored by a secretive Christian group called the Fellowship, which works to provide elected officials with teachings about Jesus Christ. Controversy has swirled around the event because of this group and for the speeches presidents have given there.
This year was no exception, but the president’s remarks were more than controversial — they were downright alarming with his promise to “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.”
American Atheists believes that the Johnson Amendment is a crucial part of the wall between religion and government, and we encourage you to contact your U.S. representative and both of your U.S. senators to tell them that you don’t want the amendment repealed.
Who is Affected?
The Johnson Amendment prohibits non-profit organizations registered under provision 501(c)(3) of the Internal Revenue Code from endorsing or opposing any person running for elected office. It is not aimed at churches in particular; the amendment applies to all entities that form for religious, charitable, literary, scientific, or educational purposes who register for this designation. Having 501(c)(3) status confers two valuable privileges: tax exemption for the entity and allowing donations to the organization to be tax-deductible for the donor. American Atheists has a 501(c)(3) designation as an educational non-profit, and is therefore subject to the Johnson Amendment restrictions.
The Johnson Amendment became law in 1954 without fanfare or debate. In fact, the Congressional Record shows no discussion at all related to the bill, which was introduced by Lyndon B. Johnson, then a senator from Texas. Johnson sponsored the amendment in order to limit the influence of two anti-communism, non-profit organizations that were spreading the national conservatism of McCarthyism while also helping to fund the campaign of Johnson’s opponent in his senate re-election bid. At the time, the only political speech limits placed on 501(c)(3) non-profits were those related to influencing legislation.
Why It Makes Sense
Proponents of the Johnson Amendment argue that with the privileges of tax-exemption and tax-deductible donations come reasonable government restrictions. No one forces an entity to register with the IRS as a 501(c)(3); it is a privilege that the government grants with the enormous benefit of being tax-exempt and accepting tax-deductible gifts. Because entities self-select to be 501(c)(3)s, they must accept the restrictions that come with it.
We also support the amendment because the government, through the IRS, treats churches differently than all other non-profits. The IRS lists five criteria that entities must meet to be considered a 501(c)(3):
- The entity must be organized and operated exclusively for religious, educational, scientific, or other charitable purposes;
- The net earnings may not inure benefit of any private individual or stakeholder;
- No substantial part of its activities may be attempting to influence legislation;
- The entity may not intervene in political campaigns;
- The organization’s purposes and activities may not be illegal or violate public policy.
When an entity seeks this status, it must fill out an arduous application that requires it to register its Articles of Incorporation and the dissolution clauses of its bylaws. If granted 501(c)(3) status, each year the entity must submit a Form 990 that details its revenues, expenses, assets, and liabilities. Some organizations that receive large donations must also file a Schedule of Contributions, which includes individual donors’ names.
But If the Entity is a Church…
Their only requirement for meeting these five criteria is simply to claim that they do. Churches do not have to complete any other part of this non-profit application, file an annual Form 990, or file a Schedule of Contributions. Why? Because they are churches. Churches “that meet the requirements of IRC Section 501(c)(3) are automatically considered tax exempt and are not required to apply for and obtain recognition of tax-exempt status from the IRS.”
No Audits for Churches Either
Churches are sheltered from the possibility of an IRS audit to a degree higher than is provided to any other individual, company, or organization. The IRS may only instigate a “church tax inquiry” if a high-level Treasury official reasonably believes, based on evidence provided in writing, that an entity has violated a narrow list of restrictions.
What’s the Worst-case Scenario?
If the Johnson Amendment were repealed, churches could become unregulated and unchecked sources of campaign financing. For example, without the amendment in place, a church could pass the offering plate in support of the 2020 Trump campaign, invite one candidate for elected office to speak at a church service but not their opponent, and receive donations in return for political endorsements. Because the IRS does not require financial disclosures from churches, all of the examples above would happen without transparency and public knowledge.
What are the Arguments for Repeal?
Many detractors of the Johnson Amendment claim it is an unconstitutional restriction on free speech and free exercise of religion because it prohibits 501(c)(3) organizations from endorsing or opposing candidates for elected office. These objections have some merit.
The amendment does not prohibit non-profits from endorsing or opposing proposed laws, cabinet appointees, judicial appointees, or social issues. Nor does it prohibit voter education and activism regarding non-elected candidates, political issues, or how to vote. So, opponents of the Amendment argue, why is voicing a position about an elected official taboo when no other political speech is prohibited?
In recent years, the U.S. Supreme Court has become increasingly deferential to religious entities that claim a federal law restricts their free exercise of religion. In 2012, it ruled that churches can discriminate in their hiring, and they don’t have to abide by the Americans with Disabilities Act. In its well-known Burwell v. Hobby Lobby ruling in 2014, the Court extended the recognition of entities having religious beliefs to closely held, for-profit companies (meaning that there are a limited number of owners and the stock is not publicly traded). It could be argued that this deference, coupled with recognizing the constitutional rights of non-profit religious entities, could call into question whether the Johnson Amendment could be viewed as an illegal restriction on an organization’s ability to freely exercise its religious beliefs through speech.
Are Churches Being Penalized for Violating the Amendment?
The IRS does not even appear to enforce the Johnson Amendment as it applies to churches. Since 2008, the Alliance Defending Freedom, an organization that advocates for less regulation of religion, has organized Pulpit Freedom Sunday, an annual event which encourages and supports clergy to speak about candidates for elected office, to record their remarks, and to send them to the IRS. In a 2015 story, the Washington Post reported that of the two thousand clergy who have participated in the Pulpit Freedom Sunday, only one participant has been audited and there was no penalty.
When Would Repeal Happen?
Trump cannot “get rid of and totally destroy” the Johnson Amendment by himself. He needs Congress to repeal it, and progress is already underway in both chambers. On the day before the National Prayer Breakfast, Senator James Lankford of Oklahoma introduced the Free Speech Fairness Act (S. 264), which would allow non-profits to keep their tax benefits while also being able to endorse or oppose political candidates. That same day, Congressman Steve Scalise of New Orleans introduced the same legislation (H.R. 781) in the House of Representatives.
Right now, your senators and representative need to hear that you want them to uphold the Johnson Amendment. Ideally, they should get a call from you every day. If these bills move forward, American Atheists will lobby members of Congress to add a provision that would make all churches and houses of worship subject to the same requirements imposed by the government on all other non-profits. If this does happen, we will be posting news on our websites (Atheists.org and AtheistVoter.org) our Facebook page, and our Twitter feed.
1. The IRS uses the word “church” to mean all houses of worship. “Glossary,” Tax Guide for Churches & Religious Organizations, p. 33 (2015)
2. This is in contrast to 501(c)(4) entities which are also tax-exempt non-profits but because they are organized to influence legislation, donations are not tax-deductible.
3. “LBJ, the IRS, and Churches: The Unconstitutionality of the Johnson Amendment in Light of Recent Supreme Court Precedent,” Regent University Law Review, Vol. 24, No. 2, p. 244 (2011-2012).
4. See Christian Echoes Nat’l Ministry v. United States, 470 F.2d 849, 857 (10th Cir. Okla. 1972) (finding “[i]n light of the fact that tax exemption is a privilege, a matter of grace rather than right, we hold that the limitations contained in Section 501(c)(3) withholding exemption from nonprofit corporations do not deprive [a church] of its constitutionally guaranteed right of free speech. The taxpayer may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative, the taxpayer may refrain from such activities and obtain the privilege of exemption.”).
5. “Tax-Exempt Status”; Tax Guide for Churches & Religious Organizations, p. 2 (2015) (emphasis added).
6. “Recognition of Tax-Exempt Status: Automatic Exemption for Churches,” Tax Guide for Churches & Religious Organizations, p. 2 (2015) (emphasis added).
7. IRC § 7611.
8. “Special Rules Limiting IRS Authority to Audit a Church,” IRS (2016).
9. Several Appeals Court cases have determined that the restrictions of the Johnson Amendment and more broadly the restriction of 501(c)(3)s are not a substantial burden on religious exercise. See Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000) (holding that not being able to express opinions about candidates for public office does not substantially burden a 501(c)(3) organization); Christian Echoes National Ministry v. U.S. 470 F.2d 849 (10th Cir. 1972) (holding that limitations of conduct in 501(c)(3) are constitutionally valid and do not deprive an organization of free speech or free exercise of religion).
10. However, other provisions of 501(c)(3) do restrict attempts to influence legislation. The IRS allows a certain amount of lobbying to be done by these entities. See Instructions for Schedule C (Form 990 or 990-EZ), IRS (2016).
11. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012).
12. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
13. There is no court decision that says the Johnson Amendment is unconstitutional; rather, the opposite is true. But recent decisions call into question previous court opinions. See Christian Echoes Nat’l Ministry v. United States, 470 F.2d 849, 857 (10th Cir. Okla. 1972) (finding “[i]n light of the fact that tax exemption is a privilege, a matter of grace rather than right, we hold that the limitations contained in Section 501(c) (3) withholding exemption from nonprofit corporations do not deprive [a church] of its constitutionally guaranteed right of free speech. The taxpayer may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative, the taxpayer may refrain from such activities and obtain the privilege of exemption.”).
14. “The Post’s View: Trump is Wrong. Pulpit Freedom Already Exists.” Washington Post, Aug. 5, 2016.
Amanda Knief is the National Legal and Public Policy Director for American Atheists.