News & Notes: Johnson Rolls in His Grave
By George Francis Kane
In July, the Internal Revenue Service filed a consent agreement with National Religious Broadcasters in a District Court in Texas to cease enforcing a restriction in the tax codes that prohibits 501(c)3 tax-exempt organizations to engage in electoral campaigns, or to endorse candidates. That restriction, known as the Johnson Amendment, was enacted by Congress in 1954. In the 2010s, Protestant organizations began objecting to its application to churches as a violation of religious freedom. It has ever since been a contentious issue in the struggle over the separation of state and church. The IRS consent agreement has been celebrated by the religious right as an historic victory, but on closer examination it is neither conclusive nor, at this point, especially important.
A search of court cases shows that there has been only one instance in which the IRS revoked the tax exemption status of a church for violating the Johnson Amendment, Branch Ministries v. Rossotti. During the 1992 presidential election campaign, Branch Ministries bought full-page newspaper advertisements urging Christians not to vote for Bill Clinton because of his positions on moral issues. The Internal Revenue Service revoked the church’s tax-exempt status and was upheld when Branch Ministries sued.
Although the IRS has not since used the Johnson Amendment to revoke the tax exemption of any church, it feeds Christian nationalists’ sense of victimization that their freedom of religion and freedom of speech are under attack. For several years the Alliance Defending Freedom promoted a “Pulpit Freedom Day,” on which it encouraged ministers to openly endorse candidates in their sermons. They were trying to provoke the IRS to revoke the tax exempt status of some churches, confident that sympathetic Justices would invalidate the Johnson Amendment when their appeals reached the Supreme Court.
Posing as the champion of Christian Nationalism in each of his terms of office, Donald Trump claimed he revoked the Johnson Amendment with Executive Orders. In 2017 the Freedom from Religion Foundation sued the IRS, which admitted in court filings that it was still bound by the Johnson Amendment. That is a law, which can only be repealed by an act of Congress, not an agency regulation that the President could rescind. This term, Trump ordered every federal agency to seek out all ways that government is discriminating against Christians. It is in this effort that the IRS agreed not to enforce the Johnson Amendment in the National Religious Broadcasters case, to the delight of Christian Nationalists.
The trouble is that the Johnson Amendment remains the law and cannot be repealed by executive action alone. The consent decree stopped IRS use of the Johnson Amendment to revoke tax exempt status only in the case of National Religious Broadcasters, but courts could still force such an action by issuing a writ of mandamus.
The separation of church and state function the Johnson Amendment serves is to prevent donations to political campaigns from becoming tax-deductible simply by laundering them through a nonprofit. Our efforts should be focused on safeguards against tax-free donations to churches making their way into political campaigns. If a minister announces in a sermon that it is a requirement of faith to vote against a certain candidate who supports abortion rights, there is no expense and there should be no offense to the law. If they print flyers for their preferred candidate to insert into their newsletter, or donate money to any political campaign or PAC, there should be penalties. If anyone claims an itemized deduction for donations to this church, it should be scrutinized and perhaps disallowed.
The safeguards against mixing tax-free charitable donations with electoral political activity must be clear, robust and rigorously enforced. If a tax-exempt organization wishes to actively participate in an electoral campaign, including a referendum, it should be able to do so as long as it can document that it has segregated tax-deductible contributions from non-tax-deductible funding for their political activity. This may be done by establishing a separate, non-tax-exempt PAC.
