A Quick Note on “the Johnson Amendment”

Part of recent campaign rhetoric involves a significant misunderstanding of what is known as “the Johnson Amendment”. To hear some tell it, the amendment is a terrific infringement on freedom of religion. This is simply not true.

When I mentioned this on twitter, my interlocutor wryly observed: “You’re trying to make a logical point? In this election?

Call me an idealist; it wouldn’t be the first time.

When I read of Donald Trump or evangelical leaders complain about the amendment, it makes it sound like a deliberate attempt to keep religion out of the public square. It feeds the anti-Democratic biases to continue to attach the regulation to Lyndon Johnson.

Here is the backstory. The federal government has allowed philanthropic gifts to non-profit organizations to be tax deductible since 1918. In the 1943 Tax Law, there were limits placed on the political activities of those organizations as part of their tax exempt status. When the Tax Code came up for review in 1954, then Senator Lyndon Johnson added an amendment to the 501c(3) section that prohibits the organization from directly endorsing a particular candidate or working directly against a particular candidate.

eisenhower_signingThe amendment was considered by a Republican-controlled House of Representatives and the Republican-controlled Senate. It was included in the 1954 Tax Reform Act and signed into law by Republican President Dwight D. Eisenhower (this is a generic picture of Eisenhower signing something, not the 1954 Law).

Wikipedia describes the impact of the amendment as follows: “Organizations recognized under Section 501(c)(3) of the U.S. tax code are subject to limits or absolute prohibitions on engaging in political activities and risk loss of tax exempt status if violated. Specifically, they are prohibited from conducting political campaign activities to intervene in elections to public office.

It’s important to keep in mind that the restriction on a tax-exempt organization is limited to its official capacity and not to its leadership. So when people suggest that ministers cannot endorse candidates, that’s false (ask Jerry Fallwell, Jr. or Robert Jeffress). If, on the other hand, Liberty University or Dallas First Baptist endorsed a candidate, then it’s a violation.

While I agree that the city of Houston overreached when going after pastors who opposed the city non-discrimination ordinance, this was part of the logic that was being pursued. Were the ministers, acting in their official capacity within the church, engaged in lobbying? (Which, by the way, was already a legal prohibition before 1954.) It would be difficult to prove and it was a terrible precedent but it’s not unreasonable given the law.

So does that mean that Christian folks have no recourse in the public square? Of course not. They are free to act as private citizens and advocate in any way they please. In addition, they have the potential of forming a 501c(4), which IS allowed to work on behalf of candidates, as long as candidate advocacy isn’t the primary focus.

For example, the Family Research Council is a 501c(3) and can advocate for their concerns by must stop short of political action. On the other hand, Family Research Action is a designated 501c(4) and is allowed to engage in candidate advocacy and position endorsement.

The Republican National Committee Platform this week calls for overturning the “Johnson Amendment”, allowing non-profits to engage in political advocacy without endangering their tax exempt status. The reporting on this is a little unclear. While many sites refer to this as removing limitations on churches, it seems that removing the Johnson language would impact all non-profits. To make allowance for churches to have advocacy but not other groups would have significant challenges to the 1st amendment (non-establishment) and 14th amendment (equal protection).

The distinction between 501c(3) and 501c(4) organizations apply to more than just churches. Planned Parenthood is a 501c(3) and cannot endorse candidates. On the other hand, Planned Parenthood Action is a 501c(4) that endorsed Hillary Clinton.

To recap: the current language on non-profit restrictions of political action was made law under Republican control of government, there is no limitation on ministers or their laity from engaging in personal endorsement of a candidate, other tax-exempt avenues are available for religious folks wishing to organize to impact public policy, and changes to the law would have wide-reaching impacts.

Newt Gingrich might be very interested to learn that dropping the Johnson Amendment would allow his hypothetical mosque to directly advocate for Sharia Law. I really don’t think that’s what the RNC is after.

As my twitter friend observed, I’m yelling into the wind. But maybe it will have some small impact the next time someone tells you that Johnson took away our right to make our religious views known.

3 thoughts on “A Quick Note on “the Johnson Amendment”

  1. I agree with your intepretation of the Johnson Amendment and the implications of Donald Trump’s comments about repealing it. I have been researching this particular subject and I am somewhat confused and appalled to see how many 501(c)(3) organization do give their endorsements despite the amendment. I am not taliking about individuals in the organization, but the actual organizations. All types of organizations to include labor unions seem to be the offenders. Religous organizations seem to be the only non-offenders. I do not see how this is condoned or ignored. I thought that maybe I was missing something in the law of the Amendment but it seems pretty straight forward. 501(c)(3) organizations cannot endorse, donate, etc. If anyone wants to check, Wikipedia gives simple lists
    and it easy to look up the 501 status here
    Does anyone have an explanation for this?

  2. I agree Ed. That is how I found this. I agree with the separation of church and state, but then I started thinking about how planned parenthood endorsed Hillary or were advocating for democrats and how that is OK. You can say the church can’t advocate for a candidate, but when the news says “Planned Parenthood Endorses Hillary Clinton” and nothing is done. Tell me how that is not wrong. And if it was the 501c.4 then that is unethical that they can be named so similarly to give the false impression that it was the 501c.3 that did the endorsing. I just don’t like double standards.

    1. Just looked up the PP Endorsement story and found this from January 2016: “The endorsement, technically made through the nonprofit’s advocacy arm, the Planned Parenthood Action Fund, brings with it at least $20 million to spend in this election cycle on presidential and Senate races in crucial battleground states, including New Hampshire, Ohio, Pennsylvania and Wisconsin”. As you suggest, that’s the 501c.4. Same happens with Focus on the Family or Family Research Council. During hte campaign, Trump said he had the endorsement of ICE when he actually had the support of the Border Agents Union.

      The implications of opening up the Johnson Amendment to every religious group in America (not just churches but mosques, synagoges, Scientology centers, Wiccans, Tribal lodges) would turn those religious units into sources of campaign fundraising and separate the churches into more homogeneous groups than they already are.

      The most important point is that the President’s view that ministers are precluded from talking about their beliefs is incorrect. They can talk about political positions and their scriptural or theological foundations but cannot mandate that members vote in a particular way. Since 81% of White Evangelicals voted for Trump, it’s hard to argue that the Johnson Amendment limited civic exploration.

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