Writing for The Conversation, Elizabeth Schmidt asks “How Much Does the Johnson Amendment Curtail Church Freedom?” She makes the case that there is a lot that clergy and churches can do, and only a few things they cannot.
…Tax-exempt churches and their staff cannot endorse or oppose political candidates, even indirectly. So, if a church wishes to retain its tax-exempt status and be able to accept tax-deductible donations, pastors are required to refrain from supporting any candidate.
That means the church cannot make political donations, invite one candidate to speak or use its facilities without the others, or compare a candidate’s positions to the church’s.
In fact, anything that suggests the church prefers a candidate or party can, at least theoretically, endanger the church’s tax exemption.
…Pastors are also free to endorse candidates if they do so as private citizens: that is, not speak from the actual building of the church, making clear their independence from their church role.
Up to that point, Schmidt’s article is helpful for showing what the tax codes allow. But the better question, as she then goes on to ask, is “Who has been penalized?”
After all, if you found out there was a law on the books that enforced the custom “No wearing white before Memorial Day or after Labor Day” — then that wouldn’t actually keep you from doing so, right? Peer pressure might, but the penal code wouldn’t.
And so, Schmidt states:
Indeed, the law clearly states that if a church violates the Johnson Amendment, it can lose its tax exemption and it can be forced to pay an excise tax on its political expenditures. But this almost never happens. The IRS does not disclose its investigations or its settlements with taxpayers, so we do not know exactly what they are investigating unless the taxpayer makes a public announcement or there is a court case.
As far as we know, however, only one church has ever lost its exemption for violating the Johnson Amendment. In 2000 the D.C. Circuit affirmed an IRS decision to revoke the tax-exempt status of the Church of Pierce Creek after it published full-page ads in two major newspapers opposing presidential candidate Bill Clinton.
There are close to 350,000 churches and houses of worship in the United States. How many case examples of churches losing their tax-exempt status would make you afraid of this happening to your church?
Statistically, a church building is far more likely to be hit by lightning, catch fire from bad wiring, or damaged by termites than a church congregation is to face a court battle over politics in the pulpit. But I bet most parishioners don’t lie awake at night worrying about bugs or bad wiring.
Schmidt closes by examining what the future could hold in this arena:
One, the situation could remain as it is, with the law on the books that most churches follow, but some blatantly disregard without losing their tax exemption because of lax enforcement. Two, the IRS could challenge a church that disregards the Johnson Amendment, and the courts could decide its fate. Three, President Trump could direct the IRS to refrain from enforcing the Johnson Amendment. Four, Congress could pass the Free Speech Fairness Act of 2017, which was introduced in Congress on Feb. 1.
…Lastly, Congress could enact legislation that would repeal the Johnson Amendment entirely, a change that is likely to have far-reaching consequences for churches and the entire nonprofit sector.
I’ll take any of those options, even the second because I don’t think the courts would uphold the Johnson Amendment.
As for those who say, “I don’t want my pastor to do such things” or for pastors who say, “I don’t want to do such things” — that isn’t the point. You have the freedom to attend the church of your choosing, or be a politics-free parson. Ending the Johnson Amendment wouldn’t change that at all.
Like archaic laws such as “You can’t drive down the highway with an uncaged bear in your car” (Missouri) or “You can’t serve pretzels and beer at the same time” (North Dakota), the Johnson Amendment is a law that goes unenforced — a fact for which we can all be thankful.
It is time for Congress to end the Johnson Amendment.
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