The law that prevents religious institutions from openly cheerleading political candidates is yet again under attack — and the nation’s leading state/church watchdog plans to once more make sure that this assault is thwarted.
The Johnson Amendment keeps all 501(c)(3) nonprofits nonpartisan. Under it, churches and tax-exempt 501(c)(3) nonprofits may not endorse or oppose specific political candidates.
Several leading GOP lawmakers, such as House Republican Whip Steve Scalise, R-La., and Sen. James Lankford, R-Okla., recently reintroduced the misnamed “Free Speech Fairness Act,” which is designed to revoke the Johnson Amendment.
“We need to repeal the Johnson Amendment so people of faith can freely express their views without fear of retribution by the IRS or any other Washington bureaucrat,” said Scalise. “For the past 65 years, the Johnson Amendment has unjustly barred religious leaders and other employees of 501(c)3 organizations from fully exercising their freedom of speech.”
Lankford made similarly deceptive claims.
“The federal government and the IRS should never have the ability to inhibit free speech,” he said. “The Free Speech Fairness Act is needed to prevent government intrusion and suppression of free speech by removing a restriction on speech that has existed since 1954. The First Amendment right of free speech and right to practice any faith, or no faith, are foundational American values that must extend to everyone, whether they are a pastor, social worker, or any charity employee or volunteer.”
But Scalise and Lankford have it all wrong. The Johnson Amendment doesn't prohibit free speech. Pastors and clergy are free to personally endorse and support candidates, and often do. Under the Johnson Amendment, they can also sermonize or comment on moral issues (war, abortion/contraception access, civil rights, poverty, etc.) and can even advise their parishioners on how to vote on referenda items. They can comment on the job performance of public officials. They can engage in nonpartisan “get out the vote” campaigns. However, religious and other 501(c)(3) nonprofits can’t use their tax-exempt donations and resources for partisan politicking, including endorsing candidates.
If the Johnson Amendment were repealed as it applies to religious institutions, they could essentially become unregulated PACs. Since churches are uniquely exempt from filing returns with the IRS, they are financial black holes, potentially inviting all manner of dark money if the ban on politicking is lifted.
Scalise and Lankford lack public support for their proposal. The Johnson Amendment is enormously popular with the American people. Four out of five Americans oppose politicking from the pulpit, according to a 2016 survey by LifeWay Research, the Southern Baptist Convention's research arm. Fully 79 percent oppose pastors endorsing candidates during a church service. More than eight in 10 believe it's inappropriate for churches to use their resources for political campaigns.
Precisely because the Freedom From Religion Foundation is on the right side of public opinion, it has been able to previously beat back assaults on the Johnson Amendment. Just last year, for instance, FFRF successfully mobilized its 30,000 members nationwide. Members inundated their legislators with one message: Protect the Johnson Amendment.
The state-church watchdog voluntarily dismissed a lawsuit in December 2017 — which can be refiled at any time — against President Trump over his church politicking executive order after forcing the Department of Justice to admit in court that a presidential executive order cannot overturn congressional laws, including the Johnson Amendment. FFRF previously sued the IRS in 2012 for not enforcing the Johnson Amendment, indeed not even having an official in place to determine if churches were violating the important safeguard. The lawsuit changed that.
The danger to the Johnson Amendment is not over, but FFRF is ready to defend it with all its might. The secular foundation of this country is too important to be left unguarded.