The FAQs: The Johnson Amendment and Political Speech in Churches

Why is political speech in churches back in the news?

Last week, at the National Prayer Breakfast, President Trump vowed to repeal the law that restricts political speech from the pulpit. “I will get rid of, totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear,” Trump told the audience. 

The day before, Republican members of Congress introduced the Free Speech Fairness Act, which would allow pastors, churches, and other tax-exempt entities to promote or oppose candidates in an election campaign. (The GOP platform adopted last year says the “federal government, specifically the IRS, is constitutionally prohibited from policing or censoring speech based on religious convictions or beliefs” and urges the repeal of the “Johnson Amendment.”)

What is the Johnson Amendment?

In 1954, Senator Lyndon Johnson was running for re-election in his home state of Texas and faced a primary challenge from a millionaire rancher-oilman. A non-profit conservative political group published material recommending voting for Johnson’s challenger. To get back at this group, Johnson subsequently introduced an amendment to Section 501(c)(3) that would prohibit tax-exempt organizations from attempting to influence political campaigns. The present ban is codified in Section 501(c)(3) of the Internal Revenue Code.

What does the law say?

According to the Internal Revenue Service,

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.

On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

Was the Johnson Amendment intended to separate church and state?

No, in fact, many legal scholars claim that Johnson had no intention for it to apply to churches. The effect on religious organizations was merely the collateral effect since they held the same non-profit status as groups whose speech Johnson wanted to limit.

Is the ban constitutional?

As law professor Robert W. Tuttle notes, some legal groups would claim that the law violates both the First Amendment’s Free Exercise Clause, which prohibits the government from regulating religious organizations more strictly than their secular counterparts, and the Religious Freedom Restoration Act, a 1993 federal statute that prohibits the federal government from imposing a “substantial burden” on a religious organization unless the government demonstrates that it must impose that burden to achieve a “compelling government interest.”

The ban may also violate the First Amendment’s Free Speech Clause, which prohibits the government from regulating speech on the basis of its content, and the First Amendment’s Establishment Clause by requiring the IRS to scrutinize sermons or other religious messages, thus excessively entangling government and religion.

If challenged in the future, the Supreme Court might rule the law is unconstitutional. But in previous related challenges lower courts have upheld the amendment’s constitutionality.

If it’s constitutional, what can be done to restore the speech rights of churches?

In 2013 a commission of the Evangelical Council for Financial Accountability (ECFA) proposed a way to fix the Johnson Amendment without fully repealing the law. The commission recommended amending the Johnson Amendment to allow:

1. Speech that would be no added cost or a very minimal cost to the organization (such as a sermon, not an expensive advertising campaign).

2. If the speech of the organization would cost more than that minimal amount, then the Johnson Amendment would only prohibit speech that clearly identifies candidates and directly calls for those candidates’ election or defeat.

“This fix, if adopted, will relieve a great deal of pressure on churches and other non-profit organizations,” says Alliance Defending Freedom, a religious liberty advocacy group. “It will get the IRS out of the business of censoring what a pastor says from the pulpit and will go a long way to bringing clarity to the IRS’ enforcement of the Johnson Amendment.”

How often do pastors mention candidates from the pulpit?

Pastors mentioning candidates—at least presidential candidates—by name from the pulpit seems to be a rare occurrence.

Last year Pew Research Center conducted a survey to find out how many churchgoers have heard their clergy speak about particular candidates. Only about one-in-ten say they have heard direct support for (9 percent) or opposition to (11 percent) a specific candidate. Among those who have heard religious leaders speak out for a candidate, Hillary Clinton was the name mentioned most often, with 6 percent of recent churchgoers saying their clergy have spoken out in support of her in the past few months. Donald Trump’s name was most commonly mentioned among those who have heard clergy speak out against a particular candidate, with 7 percent hearing him mentioned in this context.

According to Pew, compared with other groups, black Protestants were more apt to say they had heard their clergy speak out directly about political candidates. Fully 28 percent of black Protestants say their clergy spoke out in support of Clinton, and an additional 8 percent said church leaders supported Bernie Sanders. In addition, one-in-five black Protestants say their clergy had spoken out against Donald Trump, and 7 percent had heard religious leaders speak out against Clinton.

Should churches even be endorsing candidates from the pulpit?

Many Christians have a natural aversion to the politicization of the pulpit. But even those who think it might not be prudent recognize that danger in allowing the government to decide what can and cannot be said in churches.

Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission and a TGC Council member, has said, “While I don’t think a church normally should endorse candidates for office from the pulpit, that’s only because I believe the mission of the church ought to stand prophetically distant from political horsetrading.”

“That’s a matter of gospel prudence, though, not a matter of legal right and wrong,” Moore said. “A congregation should decide when to speak and what to say. Such decisions shouldn’t be dictated by bureaucrats at the IRS or anywhere else. The [Commission on Accountability and Policy for Religious Organization] is right that the chilling of the speech of churches is easily abused by politicians. That’s why I support the freedom of speech for churches and pastors, even when they say more or less than what I would say from the pulpit.”