Donald Trump would once have been thought an unlikely champion of religious freedom. But he staked out his claim at this year’s National Prayer Breakfast, vowing to liberate churches to use their voices in political campaigns. His administration, he promised, would “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”
If you’re not familiar with the Johnson Amendment, join a big club. It’s an obscure tax law passed in 1954 under the sponsorship of a Texas Democratic senator named Lyndon B. Johnson and signed by Republican President Dwight Eisenhower. It bars tax-exempt churches and other charitable groups 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,” as the Internal Revenue Service explains. If they violate the rule, they can lose their tax exemption.
What’s wrong with that restriction? Trump sees it as a gross infringement on the rights of the faithful. “Everybody in this country has freedom of speech, except for you,” he has told pastors. He has a point. But the risk of speaking out in a campaign isn’t a jail sentence. It’s merely the loss of a tax prerogative that the federal government has extended.
There is an excellent reason not to scrap the policy outright. Killing it would mean Americans could contribute unlimited sums to their churches for electioneering – and deduct the amount on their tax returns. It would privilege them over other political organizations, which can’t offer such an incentive. It would effectively grant them subsidies for campaign activities, paid for by other taxpayers.
It could turn churches into the equivalent of super PACs – and encourage super PACs to turn themselves into ostensibly charitable groups. The issue, as University of Virginia law professor Douglas Laycock told us, is preserving “a level playing field for the tax and regulatory treatment of political spending.”
Keep in mind that under the Johnson Amendment, churches are free to provide voter education sessions, do registration drives and invite candidates to speak. Members of the clergy have the complete freedom to rail against abortion rights, racial discrimination or immigration laws. Some, like Chicago activist the Rev. Michael Pfleger, don’t seem to feel inhibited by it. And some clergy are grateful for the law, because it shields them from pressure to get involved in campaigns. Torching it “would usher our partisan divisions into the pews,” Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty, told The New York Times.
But the law as written does indeed sweep too broadly. To prevent churches from becoming engines of political spending is one thing. To penalize a minister for expressing a preference for one candidate in the course of a sermon is another. Most proposals to reform the Johnson Amendment keep the first limit while dispensing with the second.
In practice, the IRS appears to have already adopted this policy, more or less. Some pastors have invited action by preaching sermons that endorse candidates and even sending recordings to the agency. But it rarely takes action. Not since 1995 has it stripped a church of its tax exemption because of electioneering.
The Alliance Defending Freedom, a group that has long opposed the rule, has not gone as far as Trump did. It has endorsed legislation in Congress that would permit statements made “in the ordinary course of the organization’s regular and customary activities” that involve no significant extra expenses – such as a pastor in the pulpit telling parishioners to go vote for Brother Smith.
That represents a sensible improvement in fundamentally wise policy. Trump has good reason to complain about the Johnson Amendment. We trust Congress will keep him from taking a legitimate objection and getting carried away.