At his first National Prayer Breakfast on February 2, President Trump reiterated a campaign promise — to repeal the Johnson Amendment:
Our republic was formed on the basis that freedom is not a gift from government, but that freedom is a gift from God. It was the great Thomas Jefferson who said the God who gave us life gave us liberty. Jefferson asked, “Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?” Among those freedoms is the right to worship according to our own beliefs. 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. I will do that. Remember.
Contrary to Trump’s assertions, the Johnson Amendment doesn’t restrict the right of congregations to “worship according to our own beliefs.” Instead, it prohibits registered 501(c)(3) organizations — which are tax-exempt, and include some religious congregations but also various other nonprofits, including organizations like the Clinton and Trump Foundations — from endorsing a candidate for public office and participating in political campaign activities. (Not all tax-exempt organizations fall under the 501(c)(3) designation, but most do.)
The president’s promise to “totally destroy” the amendment is consistent with his rhetoric throughout the campaign. And if he keeps it, it will have serious implications for campaigns in the future.
The Johnson Amendment repeal has consistently been one of Trump’s major promises to religious voters
The promise seems to have been introduced on June 22 when Trump met with hundreds of evangelical leaders in a closed-door meeting in New York City.
During that meeting, Trump made two promises to woo evangelicals:
The government has gotten so involved in your religion. Especially your religion, that it makes it very difficult. We’ll talk about that. Mike [Huckabee] and I have been discussing it, and I think we have some very important things to say. The next president — it’s going to be vital. Not only with Supreme Court justices, which we’ll also talk about at length. But also in things like freeing up your religion, freeing up your thoughts, freeing up your…
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.
I’ve seen it. … I said, “Why is it that the whole thing with Christianity, it’s not going in the right direction? It’s getting weaker, weaker, weaker from a societal standpoint?” And over the course of various meetings, I realized that there are petrified ministers and churches. They speak before 25,000 people, the most incredible speakers you could ever see, better than any politician by far. And yet when it comes to talking about it openly or who they support or why they support somebody because he’s a person — a man or a woman — who is into their values, they’re petrified to do it.
And I couldn’t get the answer. And then one day, at one of our meetings, somebody said, “They’re petrified of losing their tax-exempt status.” And I said, “What is that all about?” And they went into it. It was what happened during the Johnson administration. And I will tell you folks that some of you will agree, some of you will disagree, and some of you, it’s been ingrained and that’s the worst thing because you don’t even think about it. You can’t see the forest for the trees, some of you are so close to it. But I can tell you, I watched this during the last year, and I watched fear in the hearts of brave, incredible people. And we are going to get rid of that, because you should have the right to speak.
Here, Trump incorrectly says that Johnson passed the amendment while president. The amendment was passed by Congress in 1954, and Johnson, of course, didn’t serve as president until 1963. In 1954, Johnson was a senator, and he proposed this change to the tax code in part to keep certain tax-exempt organizations from endorsing or opposing candidates during the McCarthy era.
This issue resurfaced in Trump’s acceptance speech at the Republican National Convention on July 21, in which he talked about “an amendment, pushed by Lyndon Johnson many years ago, [that] threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views." (We fact-checked his speech here.)
Then in a five-minute video that played in a number of evangelical churches on November 6, Mike 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.
Here is how Pence describes it:
The Johnson Amendment has literally been on the books since the 1950s and it essentially threatens tax-exempt organizations and churches with losing their tax status if they speak out against important issues facing the nation from the pulpit.
Pence goes on to enumerate three moments in American history in which pulpits stood against tyranny: against King George III’s oppressive rule prior to the American Revolution, against the practice of slavery, and in favor of civil rights. It’s worth noting that there are plenty of examples of pulpits standing for said tyrannies as well, a matter Pence does not address. It’s also worth pointing out that the Johnson Amendment was passed during the early days of the civil rights movement, which complicates Pence’s third example as a reason to get rid of it.
Pence’s video has been removed from Vimeo but can be viewed on YouTube, and as of this writing it has been watched nearly 220,000 times.
The Johnson Amendment doesn’t only target churches
About a million and a half organizations in the US are registered as tax-exempt, many of which are 501(c)(3). Per the Johnson Amendment, an organization in that category “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.”
As of May 2016, only 312,373 of those organizations are congregations (this includes congregations of all religions). As the Internal Revenue Service interprets the Johnson Amendment, tax-exempt organizations — those that fall under the 501(c)(3) designation — include those which are “religious, educational, charitable, scientific, literary, testing for public safety, to foster national or international sports competition, or prevention of cruelty to children or animals organizations.” Both the Donald J. Trump Foundation and the Clinton Foundation are 501(c)(3) organizations too.
But the Johnson Amendment has become a particular target of the right-wing Alliance Defending Freedom (ADF), a legal fund that litigates on behalf of conservative Christian causes. A blog post on the organization’s website mirrors Pence’s statement:
Historically, churches frequently spoke for and against candidates for government office. Such sermons date from the founding of the United States, including those against Thomas Jefferson for being a deist and sermons opposing William Howard Taft as a Unitarian. Churches have also been at the forefront of most of the significant societal and governmental changes in our history, including ending segregation and child labor, and advancing civil rights.
The ADF argues that the amendment unconstitutionally restricts the First Amendment rights of pastors and churches (an argument that is disputed by others) as well as the free exercise clause in the Constitution, which states that Congress cannot make laws that keep people from freely exercising their religion.
The ADF’s blog post concludes on a surprising note:
After the 1954 Johnson Amendment, churches faced a choice: speak freely on all issues addressed by Scripture and potentially risk their tax exemption, or remain silent and protect their tax-exempt status. Unfortunately, many churches have silenced their speech, even from the pulpit. Ironically, after 60-plus years of the IRS strictly interpreting the amendment, there is no reported situation where a church lost its tax-exempt status or was punished for sermons delivered from the pulpit. Nonetheless, the law remains unchanged and many churches remain silent due to the IRS’s interpretation of the amendment.
That is, the Johnson Amendment has never actually been used to strip a congregation of its 501(c)(3) status.
Action has been considered at times, though. For instance, in 2014, Houston Mayor Annise Parker subpoenaed five sermons from churches in her city. After widespread outcry, Parker dropped the subpoena. Interestingly, this story is referenced in the successful 2016 Christian film God’s Not Dead 2 and teased as the probable plot for the inevitable God’s Not Dead 3.
The case in Houston, which rattled congregations across the country, makes it clear why clergy would be understandably reticent to submit their sermons for approval every week. And it’s easy to reason that this narrative is in the background of Trump’s interest in the law too.
But the argument to repeal the amendment rests on the idea that churches and other congregations are restricting their speech for fear of something that has never actually happened.
And there are a few other misleading matters in arguments such as Pence’s, which rest on statements about the Revolution, slavery, and civil rights (even leaving aside Trump and the GOP’s handling of matters around race). As it’s practiced, the Johnson Amendment would never have kept clergy from preaching that slavery — the practice of one human owning another human — is a violation of God’s law. It would just keep them from endorsing Abraham Lincoln. And, again, using the civil rights as an example is strange, since the amendment was in place during the period when many influential church sermons on civil rights were delivered.
The letter of the law also contradicts Trump’s statement at the National Prayer Breakfast that dismantling the amendment would make people more free to “worship according to their own beliefs.”
The fact that some churches did show the Pence ad is an indicator of the state of the Johnson Amendment. Under the IRS’s interpretation, 501(c)(3) organizations are allowed to provide a forum for candidates, which “is not, in and of itself, prohibited political activity,” so this may technically fall under that provision. (But without an accompanying voice from the Clinton campaign, this seems a bit blurry — especially with Pence’s hard sell for a Trump vote.)
The proposed Johnson Amendment repeal has implications that stretch far beyond churches
There are two interesting implications of this ongoing promise to abolish the amendment.
The first is that it articulates what the Trump’s administration thinks is important to the evangelical voter. The campaign correctly identified that issues around abortion and religious liberty, and their status on the Supreme Court, were a driving force behind many voters’ choice. Indeed, the nomination of Neil Gorsuch two days ago was a huge win for conservative voters who gambled on Trump.
But while nearly 80 percent of Americans say they do not favor political endorsements in church, there remains a persistent belief among many Trump supporters, including his chief strategist Steve Bannon, that the influence of Christians on American culture is in decline, and that this must be counteracted. It seems Trump’s administration is attempting to propose concrete action on this, in at least one way, by suggesting that the Johnson Amendment is to blame for churches’ declining influence. At the meeting of evangelical leaders in June, Trump spoke further:
And I say to you folks, because you have such power, such influence. Unfortunately the government has weeded it away from you pretty strongly. But you’re going to get it back. Remember this: If you ever add up, the men and women here are the most important, powerful lobbyists. You’re more powerful. Because you have men and women, you probably have something like 75, 80 percent of the country believing. But you don’t use your power. You don’t use your power…
You used to go to church, and you know, when I’d go there. … It’s much different today. I know, as an example, the young people aren’t going as much.
But we have to bring that back. We have to bring those values back. We have to bring that spirit back. And in a way, it’s been taken away from you by the federal government and by these horrendous things that have been allowed in the past. But just remember this: You are the most powerful group in this country. But you have to realize that. You have to band together. You have to band together. If you don’t band together, you’re really not powerful. You have a powerful church. I see it. I see some of these incredible pastors and ministers and people that speak so brilliantly. And I see it. But they’re great within their audience, but then outside they don’t have it. You have to band together as a group. And if you do that, you will bring it back like nothing has ever been brought back.
Power, as the Trump campaign sees it, is the greatest good — and it’s what has been stolen from churches. The way to please churches is to bring power back.
The second implication is more difficult to parse: Because most 501(c)(3) organizations are not religious congregations, the abolishment of the Johnson Amendment would also lift restrictions on other nonprofit organizations with 501(c)(3) designations that wish to endorse a candidate. Universities and colleges, sports organizations, entities that promote scientific or literary causes, and (importantly) charitable foundations would be free to conduct activities that support a political campaign and endorse candidates.
And because the Johnson Amendment prohibits “contributions to political campaign funds” too, there’s a chance that the repeal of the Johnson Amendment could create a way for these nonprofits to funnel funds and support into political campaigns and campaign activities.
The Johnson Amendment repeal is likely to remain a target of the Trump administration. The problem is there are broader consequences to repealing the amendment than those Trump has discussed, which could have serious impacts on political campaigns going forward — and the Trump administration has demonstrated itself to be unconcerned with legislating haphazardly.