President Donald Trump re-upped his pledge to strike down a law that prevents religious leaders and churches from endorsing or opposing political candidates. News stories have focused on the debate over religious freedom in the days since he vowed to “totally destroy” the Johnson Amendment, as the 1954 law is known, Trump himself framed it around religion and brought up the discussion during his remarks at the National Prayer Breakfast.
“Freedom of religion is a sacred right, but it is also a right under threat all around us,” he said. “That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”
It may seem like the law is narrowly focused on restricting what religious groups can say or do if they want to remain tax-exempt. However, the Johnson Amendment broadly covers all nonprofits. Repealing it would allow not only religious leaders to speak freely about politics, but free up nonprofit groups currently bound by nonpartisanship.
Nonprofits say it could undermine the impact their work.
“Nonpartisanship is vital to the work of charitable nonprofits. It enables organizations to address community challenges, and invites the problem-solving skills of all residents, without the distractions of party labels and the caustic partisanship that is bedeviling our country,” Tim Delaney, head of the National Council of Nonprofits, said in a statement. “Indeed, current law is the reason that charitable nonprofits are safe havens from politics, a place where people can come together to actually solve community problems rather than just posture and remain torn apart.”
The National Council of Nonprofits is the largest nonprofit advocacy group representing tens of thousands of organizations and state associations. Delaney worries that without the law donors could steer the direction of nonprofits in whatever political direction they see fit. That may be in direct opposition to the mission of an organization. Even when it aligns, it could turn a social service-based nonprofit into a tax-exempt Super-PAC designed to elect specific candidates.
Contrary to some claims, the Johnson Amendment does not prevent nonprofits and churches from speaking out on issues. It says that registered 501(c)(3) nonprofits “may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.” The majority of the 1.5 million nonprofits across the U.S. are covered by the rule.
When dozens of aid groups spoke out against Trump’s travel ban last week, they were following the rule. What they cannot do is actively campaign against Donald Trump or for his opponent when it runs for re-election in four years. The rule draws a fine line between taking an active stance on issues and “electioneering.”
“Nonprofits are already free to exercise their First Amendment rights to advocate for their missions. Allowing political operatives to push for endorsements would put nonprofits in a position where they become known as Democratic charities or Republican charities and put missions at risk,” Delaney said.
Churches fall under the same rule. They can condemn policies made by the government and publish voter guides to show where they stand on various issues. “Electioneering” or actively taking part in a political campaign will lead to a group losing its nonprofit status. That alters both the tax rules for the organization and eliminates the tax benefits for donors.
Opponents to the law are looking to the Executive and Congress for repeal. It faced three separate legal challenges at the federal level in 1983, 1990 and 2000. In each case courts ruled that the law does not prohibit free speech.
A pair of bills seeking to allow nonprofits the ability to “make statements relating to political campaigns if such statements are made in the ordinary course of carrying out its tax exempt purpose” were introduced in the House and Senate on Feb. 1. They do not repeal the law, rather add another amendment to the IRS code that essentially makes speech related to a nonprofit’s purpose exempt from current rule.
“The federal government and the IRS should never have the ability to inhibit free speech,” said bill sponsor Sen. James Lankford, R-Okla., in a statement. “The Free Speech Fairness Act is needed to prevent government intrusion and suppression of free speech by removing a restriction on speech that has existed since 1954. The First Amendment right of free speech and right to practice any faith, or no faith, are foundational American values that must extend to everyone, whether they are a pastor, social worker or any charity employee or volunteer. People who work for a nonprofit still have constitutional rights to assembly, free speech and free press.”
The law is written in an attempt to fend off concerns about the politicization of nonprofits. Lankford’s press release explicitly stated that the “legislation would not turn nonprofits and churches into political action committees.” Delaney disagrees. Opening up the freedom to make political endorsements still strips nonprofits of their important nonpartisanship standing.
“Those who donate to nonprofits want those contributions to go toward advancing the mission, not toward advancing the careers of politicians or lining the pockets of political consultants,” Delaney said. “Getting involved in supporting or opposing candidates will have a chilling effect on contributions on which many nonprofits rely.”
