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Democrats won a minor political victory this Thursday when they pressured GOP lawmakers to remove a provision about religious organizations supporting political candidates from the proposed GOP tax bill.
The removal marks the seeming conclusion to one of President Trump’s consistent campaign promises, at least for now. Trump has long made clear his desire to repeal the Johnson Amendment: a provision forbidding nonprofit organizations, including churches, from taking explicit stances on political candidates. A provision in the House Republican tax bill had effectively repealed the Johnson Amendment, named for then-Sen. Lyndon B. Johnson in 1954.
“I don't want the IRS looming over our faith leaders in the community as they express their religious freedom,” said Texas Rep. Kevin Brady, the highest-ranking Republican working on the bill, told reporters when the bill was introduced.
At the time, the news had been received with consternation by liberal groups, including the Center for Inquiry (CFI). “Eliminating the Johnson Amendment for churches will enable religious organizations use their tax exempt donations to support election campaigns,” said Jason Lemieux, CFI’s director of government affairs, in a statement.
While the House tax bill had contained a provision scrapping the amendment, the Senate bill had not. Ultimately, Senate Democrats were able to remove the provision from the final bill by citing the “Byrd Rule,” a 1974 provision that allows senators to block legislation during the reconciliation process of negotiations on budgetary matters between House and Senate if that legislation contains material deemed to be “extraneous” to the financial substance of the bill.
Many Republicans and some evangelical groups condemned the move. In a statement to reporters, Sen. James Lankford (R - Okla.) said, "I'm disappointed in the decision of the parliamentarian to not allow the revised text of the Johnson Amendment into the tax reform bill. The federal government and the IRS should never have the ability, through our tax code, to limit free speech."
But many progressive groups, including religious groups, greeted this move positively. The Baptist Joint Committee for Religious Liberty, a mainline Protestant group, released a statement praising the move. “If this tax bill passes, one thing Americans won't have to worry about is whether their house of worship or local charitable nonprofit will be turned into a PAC,” said the organization’s executive director, Amanda Tyler, in an emailed statement. “This is a big win for churches, synagogues, mosques, all other 501(c)(3) nonprofits, and the people who rely on them as a vital part of our society.”
What is the Johnson Amendment, anyway?
The Johnson Amendment keeps religious and many other tax-exempt organizations from endorsing or opposing specific candidates for public office, as well as contributing to campaigns. Those that do risk losing their tax-exempt status. Although the Johnson Amendment is rarely enforced in practice, its opponents argue that the amendment may be unconstitutional and that this threat has a “chilling effect” on what clergy feel comfortable saying from the pulpit.
That said, the amendment is rarely enforced, and has never in its history actually been used to strip a church of its 501(c)(3) status. And when action has been considered for churches in violation, conservative backlash has often prevented actual enforcement. For instance, in 2014, Houston Mayor Annise Parker subpoenaed five sermons from churches in her city. After widespread outcry, Parker dropped the subpoena.
The amendment has become something of a hot-button issue for evangelicals, despite its relatively small practical effects on churches. Trump first raised the issue during his campaign, in June 2016, after he held a closed-door meeting with hundreds of evangelicals in New York City. During that meeting, Trump seemed to be attempting to woo evangelicals with his willingness to repeal the motion:
You talk about religious liberty and religious freedom. You really don’t have religious freedom, if you really think about it, because when President Johnson had his tenure, he passed something that makes people very, very nervous to even talk to preserve their tax-exempt status. It’s taken a lot of power away from Christianity and other religions.
While Trump got his facts wrong — Johnson was a senator, not president, at the time the amendment was passed, and the amendment only refers to explicit stances on candidates, not political issues more generally — his words nevertheless reflected his willingness to signal himself as a “pro-evangelical candidate,” albeit by making a largely symbolic concession.
Mike Pence, likewise, used the issue to woo evangelical voters. In a five-minute video that played in a number of evangelical churches right before the election, Pence made a pitch to congregants for their vote, citing two main reasons to vote for his ticket: the promise to appoint justices to the Supreme Court “who will uphold our Constitution and the rights of the unborn” — in other words, someone with conservative views on religious freedom and abortion — and a promise to repeal the Johnson Amendment.
That said, it’s unclear just how effective a dog whistle repealing the Johnson Amendment actually is. Nearly 80 percent of Americans say they do not favor political endorsements in church. Repealing the Johnson Amendment, in other words, is often a handier way of signaling a pro-evangelical stance than it is an actually useful or desirable political act.
It’s also unclear that the Johnson Amendment is really an effective deterrent from pulpit politicizing. A Pew study from last year found that about two-thirds of regular churchgoers had heard political statements from the pulpit. The highest percentage of these were black Protestants, 28 percent of whom heard clergy support for Hillary Clinton and about 20 percent of whom heard ministers oppose Donald Trump. By contrast, about 4 percent of white evangelicals heard clergy support a presidential candidate, while 7 percent heard statements against a candidate.
The tax bill wasn’t the GOP’s first attempt to get rid of the amendment
This wasn’t the first time Trump, or Republican members of his administration, has attempted to get rid of the amendment. In early May, Trump unveiled an executive order, titled “Executive Order on Promoting Free Speech and Religious Liberty,” which instructed the Treasury Department not to enforce penalties against churches or other institutions that violated the amendment. That order was seen by many as weak and ineffectual, in part because it only refers to “speech” on moral or political issues “from a religious perspective”: something that churches and other organizations are already allowed to engage in without falling afoul of the Johnson Amendment rules, which instead focus on speech and financial contributions that directly intervene in political campaigns.
The summary document distributed to religious leaders at the White House in advance of that order suggested that the executive order would alleviate the burden of the Johnson Amendment, which “prohibits religious leaders from speaking about politics and candidates from the pulpit” — a statement that partly mischaracterizes the amendment. But the actual text of the executive order makes no statement about candidate endorsement.
At most, the executive order gave IRS officials explicit permission to do what they already do: rarely enforce the Johnson Amendment. The tax bill, by contrast, would have allowed for a much more robust repeal of the Johnson Amendment.
That said, given how rarely the Johnson Amendment was ever enforced, its removal from the tax bill seems to be a symbolic, rather than practical, victory for Democrats.
