We Need to Amend the Johnson Amendment So the IRS Will Allow Free SpeechBy Tony Perkins President
Tony Perkins is President of Family Research Council. This article appeared in The Daily Signal on September 29, 2016.
Millions of Americans will go to the polls Nov. 8 and vote. These Americans are a cross section of society; they are diverse, with many different opinions, political views, areas of interest, and sources of knowledge that inspire their choices.
Such a robust civil society is part of what makes our country great. This civil society and the organizations that compose it should be allowed to inform their followers with expertise that could help them choose elected officials.
Who doesn’t want informed voters?
Yet for decades a provision of the tax code referred to as the Johnson Amendment has prevented these organizations from providing such information.
Section 501(c)3 bars “[c]orporations … organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes” from “participat[ing] in, or intervene[ing] in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”
The amendment was introduced in 1954 by Sen. Lyndon B. Johnson, D-Texas, as a way to stop his political opponents. The future president never intended to bar advocacy organizations from mentioning elected officials, or pastors and churches from commenting on candidates.
Unfortunately, the Johnson Amendment certainly has been used in this way. Indeed, under current IRS guidance, it prevents a whole host of nonprofit organizations, religious and otherwise, from informing their followers in ways relevant to their own duty to vote.
This ban is at odds with our own history. Since the birth of our nation, pastors and churches have been at the forefront of shaping public debate and our choice of public servants.
For example, Martin Luther King Jr. was a clergyman, and the political involvement of African-American churches was integral to progress in the civil rights movement he helped lead in the 1950s and 1960s.
Where would we be now if such pastors had not made their voices heard on the political and social issues of their time?
Not all pastors will choose to address political issues and candidates in the same way. But just because some may not does not mean all should not have the right to do so.
Today, many pastors and churches have been intimidated into silence by guidance from the Internal Revenue Service that relies on the Johnson Amendment to repress speech from the pulpit. This is not right, and it must change.
One problem with the current IRS guidance is that it is incredibly vague. No one knows precisely what kind of spoken or written comment on a candidate will draw the attention of the IRS. Even the IRS itself does not clearly describe what would violate the law. Such vagueness chills free speech.
Another problem with the current law is that it is selectively enforced. The IRS targets certain nonprofit organizations while ignoring others that do the same thing.
For example, the IRS initiated an investigation of the NAACP after its chairman gave one speech including negative commentary on George W. Bush. While the IRS subsequently closed the investigation and refunded taxes it had imposed on the organization, the NAACP was dragged through a two-year process.
This is not fair and teaches a lack of respect for the law and the IRS throughout American society.
All 501(c)3 nonprofits, religious and otherwise, should be able to speak in these ways free from the threat of impending government prosecution.
So, how do we fix this?
We must amend Section 501(c)3 to permit statements regarding political campaigns (which may urge listeners to elect or defeat a candidate, or contribute to a candidate or a certain political organization) in the course of the nonprofit’s regular activities and to further its exempt purpose, as long as the nonprofit incurs no more than minimal costs in making the statement.
A bill scheduled to be introduced in the House of Representatives this week, the Free Speech Fairness Act (HR 6195), sets out to do that.
Amending the Johnson Amendment in this way, and not simply repealing it entirely, relaxes the speech restrictions on all Section 501(c)3 nonprofit entities and allows them the breathing room to communicate how candidates have addressed their issues.
At the same time, the amended law still will prevent tax-exempt organizations from abusing their organizational purpose by financing a candidate or buying political advertisements to get them elected.
Under these amendments, a church could speak positively about a candidate focusing on the issues it cares about, a health organization could commend a politician who has been supportive of its work, and a prison reform group could warn against a candidate who has worked against its causes. And so on.
These amendments would extend the same speech protections to all tax-exempt entities (both religious and nonreligious), regardless of their organizational mission, on both sides of the political aisle.
Such reforms to the Johnson Amendment would be a win for all voters as we continue to educate ourselves and decide how best to run our country.
Pastors increasingly understand how the Johnson Amendment has been used to chill speech and suppress religious freedom. This is why on Oct. 2 pastors across the country will participate in “Pulpit Freedom Sunday,” a day for them to declare to their congregations that they should be accountable to God alone, not the IRS, for what they say behind the pulpit.
More free speech for organizations, which will increase voter awareness, has no downside. This is a policy change that should be eagerly embraced by those who truly want a robust civil society where the citizenry, not just wealthy special interests, is engaged.