The Johnson Amendment: Repeal It or Keep It?

Updated on January 20, 2018
CatherineGiordano profile image

Ms. Giordano is a writer and public speaker who is interested in politics and history.

The Question of the The Johnson Amendment

The Johnson Amendment protects both churches and society by prohibiting churches from endorsing political candidates.
The Johnson Amendment protects both churches and society by prohibiting churches from endorsing political candidates. | Source

Should the Johnson Amendment Be Repealed?

Should churches become SuperPacs? Should massive amounts of anonymous money be allowed to flow into the political system? Should people get a tax deduction for political donations? The answer is No! No! God Forbid, No!

Yet, this is what Donald Trump wants to do. In fact, it is what he has already started to do. I’ll go into detail about that, but first let me discuss what tax exempt status and the 501(c)(3) designation) means and how the “Johnson Amendment” became law.

What Is the 501(c)(3) Section of the Tax Code?

Churches, like other nonprofit organizations, have a special tax status—they are 501(c)(3) organizations. They are called so because of the following specific provision in the tax code. The words in bold are referred to as the Johnson Amendment.

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious [ . . . ] purposes [ . . . ] no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h) [relating to certain expenditures by charities to influence legislation]), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

Tax exemption for nonprofit organizations (charities, churches, museums, and other organizations devoted to the public good) became law over a period of years from 1894 to 1969.(1)

The Johnson Amendment became law in 1954. It was named for then-Senator Lyndon Johnson) (TX D) who introduced the first draft of the amendment.

The Johnson Amendment Is Needed

The Johnson Amendment prevents large sums of anonymous money (dark money)  from flowing into politic campaigns.
The Johnson Amendment prevents large sums of anonymous money (dark money) from flowing into politic campaigns. | Source

What Does Being Tax Exempt Mean?

Nonprofit organizations don’t pay income tax because technically there are no profits to tax. They are exempt from other taxes such as property taxes and sales tax. Additionally, donors may take a tax deduction for any donations they make to a non-profit.

Essentially, the law says that tax exempt status is only given to nonprofit organizations devoted to serving the public in some way--charitable, educational, or religious purposes among others.. It also states that political aims may not be the primary focus of the organization.

The word primary creates a big loophole. It means that some political activity—like advocating legislation-- is acceptable. How much political activity is permissible? The law is ambiguous on this point. The IRS must make the determination as to whether or not an organization qualifies for tax exempt status.

  • The NRA (National Rifle Association) was founded to promote firearm competency, marksmanship, and gun safety. It has 5 million members. Its mission has expanded to lobbying for laws that broadly interpret the second amendment right to bear arms and to endorse and donate to political candidates who advance this mission. The NRA rates candidates according to their voting records on gun legislation and endorses candidates. It has set up a political action committee to donate to candidates. In 2016, the NRA gave more than $1 million to political campaigns (almost all to Republicans), spent another $3 million on lobbying, and its affiliate groups spent over $52 million on political activities for a total of $56 million.(2)
  • The Sierra Club is the largest environmental organization in the United States. It has 3 million members. It also has a PAC. In 2016, they donated about $500,000 to candidates (mostly Democrats), spent about $600,000 on lobbying, and its affiliate groups spent about $900,000 on political for a total of $3 million.(2)
  • Churches don’t usually set up affiliated political action committees, but they can and do openly lobby for legislation. They can also be involved in “non-partisan” political activities (officially non-partisan, but often obviously designed to benefit one political party over the other). The line is supposed to be drawn at an official endorsement from the church.

Violation of this section of the tax code can put an organization’s tax-exempt status in danger of being revoked. In actual practice, the law is seldom enforced. Nonetheless, the threat of losing tax exempt status keeps most organizations in line. The violations that do occur are mostly ignored by the IRS. Out of 2000 churches who challenged the law on Pulpit Freedom Sunday only one was audited and none were punished.(3)

Donald Trump's Promise

As President, Donald Trump has taken steps to weaken the Johnson Amendment.
As President, Donald Trump has taken steps to weaken the Johnson Amendment. | Source

How Is Donald Trump Trying to Abolish These Safeguards?

During his presidential campaign, Donald Trump openly courted the “religious right,” and they were some of his strongest supporters. The Pew Survey showed that 81% of white Evangelicals voted for Donald Trump (4).

During the presidential campaign Donald Trump promised to abolish the Johnson amendment. When he accepted the presidential nomination at the Republican National Convention he said, ““You have so much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits….I am going to work very hard to repeal that language and protect free speech for all Americans."(5) He also made this promise at some of his campaign rallies.

Only Congress can change the law, so Donald Trump did the next best thing. He directed the IRS to ignore violations of the Johnson Amendment by churches and religious groups.

  • As President, at the National Prayer Breakfast in February 2, 2017, Trump promised to “totally destroy” this prohibition.(6)
  • On May 4, 2017, Trump made good on his promise with an executive order. The order instructed the IRS to exercise “maximum enforcement discretion” saying that the Johnson Amendment was a “burden” on religious groups.

The Johnson Amendment has not been repealed; it just won’t be enforced. However, the “enforcement discretion" applies only to religious groups. Other nonprofit groups must still refrain from endorsing candidates.

The executive order was mainly done for show. It does not change anything. It merely states that "churches should not be found guilty of implied endorsements where secular organizations would not be."

Nonetheless, the executive order is dangerous because of its symbolism. It puts a chink in the wall of separation of church and state. Tax dollars should never be used for religious purposes.

Have There Been Previous Attempts to Repeal the Johnson Amendment?

There have been a number of attempts to repeal this amendment in the past.

The Alliance Defending Freedom has contended that the amendment violates the First Amendment right of free speech. The group is advancing the “Pulpit Freedom Movement,” which urges Protestant ministers to violate the statute in protest..

White House Press Secretary Sean Spicer has announced to the press that the President is committed to abolishing the Johnson Amendment" and to "allowing our representatives of faith to speak freely and without retribution."

Republican lawmakers have introduced legislation that would allow all 501(c)(3) organizations to support political candidates, as long as any associated spending was minimal. What does “minimal” mean? Is it another giant loophole? Fortunately, as of this writing the legislation has not moved forward.

Advocates of repeal of the amendment cite the first amendment right to free speech. They conveniently ignore the part of the first amendment that says “Congress shall make no law respecting the establishment of religion nor prohibiting the free exercise thereof.” It has long been interpreted to mean that no tax money can be used for religious purposes. This part of the First Amendment has been steadily eroded. Repeal of the Johnson Amendment could be a death blow to separation of church and state.

How Does the Public Feel About the Johnson Amendment?

Although most Americans are religious, a recent survey (March 2017) showed that the large majority of Americans do not want the Johnson Amendment repealed--72% of the American public is against preachers politicing from the pulpit. Even 66% of Trump voters did not want the Johnson Amendment repealed.(7)

Another recent poll (March 2017) was conducted by the National Association of Evangelicals among pastors. It showed that almost 90% of evangelical pastors opposed endorsing political candidate from the pulpit.(8)

Additionally, more than 4,500 leaders of religious and secular groups signed a letter opposing the weakening of the Johnson Amendment.

I think repeal of the Johnson Amendment is unpopular for several reasons.

  • Many pastors do not want to bring politics into the church. It is divisive. People who disagree with the politics of the pastor might decide to leave the congregation.
  • Secondly, government money could lead to government intrusion. Repeal of the Johnson Amendment could lead to less freedom for churches, instead of more.

Polling Data

Data from March 2017 poll of 800 registered voters conducted by Independent Sector
Data from March 2017 poll of 800 registered voters conducted by Independent Sector | Source

What Is Your Opinion on This Issue?

What is your opinion of the Johnson Amendment? Do you think the United States should:...

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Do Churches Already Have Special Tax Advantages?

The law requires that nonprofit groups adhere to certain rules. Religious organizations are exempt from some of these rules.

  • They receive a tax-exempt status automatically just by declaring themselves to be a church; they do not need to apply for this exemption as other groups do.
  • They do not need to file Form 990 providing information about receipts and spending; other nonprofits must file this form annually.
  • They do not need to report the identities of significant donors as other non-profits do.
  • They are less likely to be subjected to an audit compared to other nonprofits

Many churches flagrantly take advantage of tax rules. The pastor does not have to pay taxes on the parsonage—a home provided to him by the church. I don’t disagree that modest living accommodations can be provided tax free when the pastor lives in a parsonage attached to the church. But some pastors live in multi-million dollar mansions. Technically, this does not violate the law, but it clearly violates the spirit of the law.

Church-State Separation

Church-state separation is good for everyone.
Church-state separation is good for everyone. | Source

Is Repeal of the Johnson Amendment Good or Bad?

The Johnson Amendment protects both religion and society.

It is good for churches because people don’t want to hear about politics at church. Let church be a politics-free zone.

  • People come to church for worship, not for politics.
  • The Constitution states that there shall be no political test for office; we surely don’t want there to be a political test for church membership.
  • Pastors have the freedom to speak on issues as they see fit, especially when they connect the issues to the teachings of the church.
  • Candidates are free to address people in a church and they can even preach a sermon. However, it is only polite to keep their talks on these occasions free of overtly political messages.

The Johnson Amendment is good for society because it respects freedom of religion and protects churches from being used as part of a political “money laundering” scheme for “dark money” (money given anonymously).

Money donated to churches is tax deductible. Obviously political donors will prefer to give money for political campaigns to a church rather than directly to candidates or their SuperPacs in order to get the tax deduction. What's worse, churches do not need to show where their money is spent so no one will ever know how those donations were spent. (For instance, did it go in the pastor's pocket or were kickbacks paid?)

We don’t want churches being taken over by political groups until they are more of a Super-Pac than a church. And we don't want to present another loophole for fraud.

Finally, if a church wants to take an active role in politics and want to endorse candidates, the Johnson Amendment does not stop it from doing so. All it needs to do is renounce its tax exempt status.

Footnotes:

(1)You can find more information about the history of the 501(3)(c) section of the tax code on the IRS Website: A History of the Tax-Exempt Sector

(2)OpenSecrets.org is an non-partisan non-profit award-winning website. It provides comprehensive information about federal campaign contributions lobbying expenditures. Click the links to see the data for the National Rifle Association and the Sierra Club

(3)Washington Post August 5, 2016 Trump is Wrong. Pulpit Freedom Already Exists

(4) Pew Research Center: How the Faithful Voted

(5)Donald Trump’s 2016 Republican National Convention Speech

(6)Remarks by President Trump at National Prayer Breakfast

(7)Independent Sector Poll: Poll: Americans Support the Johnson Amendment

(8) National Association of Evangelicals Poll: Pastors Shouldn't Endorse Politicians

Questions & Answers

    © 2017 Catherine Giordano

    I welcome your comments on this issue.

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      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        12 months ago from Orlando Florida

        Smaktcat: I actually agree that the Johnson Amendment should be appealed along with the tax deductions and other tax benefits churches are given. BUT, those who advocate for repeal want to keep the tax deductions.

      • profile image

        Smaktcat 

        12 months ago

        I don't much care for subsidizing churches or any other places of worship anyway. With the rise of mega churches with pastors driving private jets instead of helping the communities, I don't see that they deserve tax exemptions. So repeal away, and if a religious group actually is doing good with their monatary donations, have them apply fo exempt status based on that.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        16 months ago from Orlando Florida

        Stephen Smith: I agree with you--it should be enforced, but it is almost never enforced. And I doubt it ever will be.

      • profile image

        Stephen Smith 

        16 months ago

        It needs to be enforced. It also needs to be re-vamped. Make them INSTANTLY loose their tax exempt status, and then also have to pay back-taxes, with interest from the moment they first decided to get political. Church and State are separate and the moment a church begins to become political it is no longer a church, but a political organization.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        18 months ago from Orlando Florida

        Angelo Grant: I agree. Churches will be able to get donations that the donors can write off on their own taxes and use it for political candidates.This will all be "dark money" since churches do not have to report donations. Churches will be able to use money from the collection plate; It will be bad for churches also because many people want their church to focus on godly matters and charity and not politics. These people will leave the church. Thanks for your comment

      • Angelo Grant profile image

        Angelo 

        18 months ago from New Castle, DE

        The Johnson Amendment needs to stay in place. If it is repealed a handful of churches will have more power than many States. Erode the Johnson Amendment and the dark ages will return. My statements are not an exaggeration, it's foresight.

      • profile image

        XaurreauX 

        18 months ago

        Secularism is for grownups.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        18 months ago from Orlando Florida

        I think churches should have freedom of speech. But they can't be involved with politics if they get a tax-exemption. Removing the tax-exemption might be, as you say, a good thing. The tax exemption makes churches very profitable and that attracts charlatans. Perhaps removing it would help keep Christianity "real."

      • Ericdierker profile image

        Eric Dierker 

        18 months ago from Spring Valley, CA. U.S.A.

        Catherine, this is just so thought provoking.

        There is a pretty big push to get away from churches as buildings and as a place with a paid leader. Attendance is down. Home worshiping is up. Mega Churches are flourishing.

        Maybe getting rid of that status would be a good thing for Christians trying to bring it back to real. Your notion, maybe be the best thing for Christians.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        18 months ago from Orlando Florida

        Ericdierker: Thank you for the compliments. Now on to substance. I know churches are doing political stuff already. And you are right--a pastor can endorse a candidate as an individual, but not as a pastor of a church. A difference without a distinction. The answer is to strengthen the Johnson Amendment or to repeal tax exemptions for everyone. And maybe subsidies too. Tax-exemption without even the minimal protections of the Johnson Amendment is asking for trouble.

      • Ericdierker profile image

        Eric Dierker 

        18 months ago from Spring Valley, CA. U.S.A.

        Here is where I lean toward repeal. Oil company with tax breaks and huge profits, Monsanto, Arms Dealers, Foreign Governments can all spend literal 100's of millions on political deals and lobbying. But not churches. Just because they are tax exempt and the others get subsidies.

        I didn't look it up but I would bet in the US we spend at least twice as much on subsidies for industries that lobby for it than we lose in not taxes on churches. Like Wheat farming.

        On the other hand, church leaders endorse all the time "unofficially" simply by letting congregations know where they stand personally.

        My understanding of the law allows for Joel Osteen to personally engage in politics as an individual. Free speech and all that stuff.

        Excuse me for not saying it first that this is an outstanding article, well researched, well written and with just the right amount of passion. I was a pleasure to read.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        18 months ago from Orlando Florida

        Duane Townsend: It looks like you are saying that the Johnson Amendment is not being enforced so it should be repealed. If it was repealed, the use of churches as political SuperPacs would become huge. The other nonprofits would want the same right. I say repeal the tax exempt status of churches and other nonprofits and let them do as they please in the political arena. If there is no tax exemption, there is no Johnson Amendment. However, I strongly object to repealing the Johnson Amendment without repealing the entire tax-exemption scheme.

      • Duane Townsend profile image

        Duane Townsend 

        18 months ago from Detroit

        Catherine...churches tacitly endorse candidates all the time.

        Evangelical fundamentalists have GOP/conservative candidates visit their churches regularly.

        Same for many black churches that have the obligatory Democratic candidate in.

        The Johnson Amendment should be repealed.

        I am willing to modify that to only repeal it only for mega-churches that are in gaudy palaces appraised in the $10s of millions.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        18 months ago from Orlando Florida

        Duane Townsend: The Johnson Amendment says that churches that get tax exemptions can not endorse political candidates. I think you meant to say that you want to keep the Johnson Amendment, but you want to go further and take away tax exemption for churches, especially the mega-rich churches.

      • CatherineGiordano profile imageAUTHOR

        Catherine Giordano 

        18 months ago from Orlando Florida

        FlourishAnyway: I feel the same way about the tax exempt status of churches and our soon to be ex-president (I hope). Taxpayers are indirectly supporting organizations that we have no affinity to. The worst of it is--the richer they are, the more we support them. The richer they are the more taxes they get out of paying. Thanks for your comment.

      • FlourishAnyway profile image

        FlourishAnyway 

        18 months ago from USA

        I don't believe politics belongs in the pulpit. It's just a way to turn people away from on church. Trump is a nightmare and I hope he is not President much longer. I don't believe religious organizations should even have tax exempt status. You have done a superb job educating people about what Trump intends to do. Let's just hope he's as successful with this as everything else so far.

      • Duane Townsend profile image

        Duane Townsend 

        18 months ago from Detroit

        A well stated Hub Catherine. I admire the research and thought you put into this.

        For the record, I'm for repeal of The Johnson amendment.

        At least for mega-churches, that's where politicians spend their time at anyway.

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