Rep. Steve Scalise (R-LA1)

Sen. James Lankford (R-OK)

Should churches be able to endorse candidates or political parties and retain their tax-exempt status?

Context

Since 1954, churches and other religious or nonprofit organizations have been banned from endorsing political candidates or parties from the pulpit, or else they are supposed to lose their tax-exempt status. It’s called the Johnson Amendment.

During negotiations over the Republican tax reform bill of 2017, the House-passed version repealed the Johnson Amendment entirely, while the Senate bill kept it intact. During the reconciliation process, in which the two distinct versions would be combined into a final version and likely become law, Senate Democrats used an obscure provision known as the Byrd Rule allowing them to challenge the applicability of any portion of the tax reform bill not directly dealing with taxes.

The nonpartisan Senate parliamentarian Elizabeth MacDonough agreed with the Democrats that the Johnson Amendment language was not germane to the tax bill, so it was taken out. However, it could still pass as a piece of standalone legislation.

What the bill does

The Free Speech Fairness Act is that piece of standalone legislation.

While the lead congressional sponsors contend that their bill doesn’t repeal the Johnson Amendment — which is technically true — it may be a distinction without much difference, as the reforms are so fundamental as to effectively render the Johnson Amendment toothless.

Specifically, the bill allows any 501(c)(3) nonprofit organizations such as churches to advocate for or against a political candidate or party. The bill does maintain one major provision in existing law, though: 501(c)(3) nonprofit organizations such as churches would not be able to directly donate money to any candidate or political party.

The House version was introduced in February 2017 by Rep. Steve Scalise (R-LA1), labelled H.R. 781. The Senate version was introduced in tandem by Sen. James Lankford (R-OK), labelled S. 264.

What supporters say

Supporters argue the bill restores free speech rights which have been trampled for 64 years and counting.

“The federal government and the IRS should never have the ability to inhibit free speech,” Lankford said in a press release. “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,” Lankford continued. “People who work for a nonprofit still have constitutional rights to assembly, free speech, and free press.”

President Donald Trump has also supported repealing the Johnson Amendment, though in his typical blunt manner, he didn’t mask the Christian motivations underpinning most evangelical Congress members’ support:

“Why is it that the whole thing with Christianity, it’s not going in the right direction? It’s getting weaker, weaker, weaker from a societal standpoint? And over the course of various meetings, I realized that there are petrified ministers and churches. They speak before 25,000 people, the most incredible speakers you could ever see, better than any politician by far. And yet when it comes to talking about it openly or who they support or why they support somebody because he’s a person — a man or a woman — who is into their values, they’re petrified to do it.”

What opponents say

Opponents counter that the Johnson Amendment has for decades been a necessary measure to prevent what would essentially be taxpayer subsidies for religious proselytizing about political candidates or parties. They say, why should taxpayers subsidize political speech they might disagree with?

“The rules don’t bar discussion of political issues [emphasis added] by tax-exempt nonprofits. The only thing these groups can’t do is become shills for someone’s campaign for office,” Americans United for Separation of Church and State Executive Director Barry Lynn wrote in a U.S. News & World Report op-ed.

“Such a restriction makes perfect sense. Recall that the idea behind tax exemption is that the groups that get it are doing something beneficial for society,” Lynn continued. “Getting someone elected to the office of mayor, governor, congressperson or president benefits only the person who wins the office and possibly his or her supporters. It’s hardly a public benefit that everyone should have to subsidize.”

In real life

It’s also doubtful how harmful the existing rule is in reality, even to opponents. More than 2,000 churches have deliberately disobeyed the law since a decade-long campaign beginning in 2008 spearheaded by the Alliance Defending Freedom. Of those more than 2,000 churches, not a single one has actually lost their tax-exempt status.

(Although the Johnson Amendment is justified by supporters today on other grounds, there’s no ignoring the main reason the provision was passed in 1954: largely as a personal vendetta introduced by then-Senator and future President Lyndon Johnson to silence two nonprofit groups campaigning against his Senate reelection bid.)

Odds of passage

The House bill has attracted 61 House cosponsors, all Republicans, and awaits a potential vote in the Ways and Means Committee. The Senate bill has attracted a few fewer five cosponsors, all Republicans, and awaits a potential vote in the Finance Committee.

A previous version introduced by Scalise in September 2016 never received a vote, although it was done late in the congressional session and largely intended to legislatively mirror Trump’s call for the policy the previous month in his Republican Convention speech. This current version, by contrast, was introduced more with the intent of potentially becoming law under a Republican president.

A version that would outright repeal the Johnson Amendment in the current Congress is H.R. 172, introduced by Rep. Walter Jones (R-NC3). The bill has attracted three House cosponsors, all Republicans, and awaits a potential vote in the House Ways and Means Committee. However, identical versions introduced by Jones in 2015, 2013, 2011, and 2007 never received a vote.

This article was written by GovTrack Insider staff writer Jesse Rifkin.

Like our analyses? Want more? Support our work!