President Trump’s vow to “destroy” the 1954 Johnson Amendment, which restricts nonprofits like churches or charities from engaging in any political speech, is a good idea.
Despite some hysterical reactions, the truth is that, as it stands, the Johnson Amendment is horribly written. It chills vital speech in violation of the First Amendment. Congress should repeal it, and pass a clear and sensible provision in its place.
The amendment was inserted into the law by a powerful senator – Lyndon Baines Johnson, who later became president. Johnson’s amendment aimed to silence groups he didn’t like. Today, the potential IRS penalty for even a minor violation of the amendment is a death sentence for any group – a complete loss of its tax exemption. That’s absurd.
The law itself is too vague. The most recent guidance, released by the IRS in June 2007, attempts to brings as much clarity as a Kardashian would to nuclear physics.
In determining whether a 501(c)(3) nonprofit would violate the law, the IRS lists factors such as “Whether the statement is delivered close in time to the election” and “Whether the statement expresses approval or disapproval for one or more candidates’ positions and/or actions.”
A rabbi might ask, how close is too close to the election? And how could, say, a Catholic faith leader both perform his or her duties in preaching his religion’s opposition to abortion while steering clear of indirectly expressing approval or disapproval of candidates with differing views? The IRS provides no clear answer.
No one wants churches or charities to become super PACs blessed with tax-deductible donations. That’s not what’s going to happen, and I very much doubt President Trump wants that outcome. Evangelical groups that sparked Trump’s concerns have no interest in this state of affairs either.
But do we want a law that places the IRS in a position to investigate what a preacher said from the pulpit the Sunday before Election Day? Faith leaders should never have to worry about deciding between exercising their First Amendment rights or worrying about keeping the lights on.
The same goes for nonprofits outside of the faith community. In October 2004, the IRS opened an investigation of the NAACP for a potential violation. A letter from the agency warned that the group had “condemned the administration policies of George W. Bush in education, the economy and the war in Iraq.” The New York Times reported the investigation was triggered by “a speech given by [then-NAACP] chairman, Julian Bond, at its annual convention last July in Philadelphia.”
Such investigations are intrusive and an affront to the First Amendment. Worse, the IRS already has a lousy reputation as a speech cop from the Tea Party targeting scandal.
The law, as written, goes too far. Its vague wording creates a legal environment ripe for abuses stemming from biased enforcement. It also forces the IRS, a tax-collecting agency, to devote resources better spent elsewhere. Its command that the IRS impose a death sentence by yanking a group’s tax exemption for violations puts the agency in an impossible position.
The Commission on Accountability and Policy for Religious Organizations made several sensible suggestions to solve the problems with the current law. Allow charities, including churches and other religious groups, to speak “so long as such communications do not involve the disbursement of tax-deductible funds.” In other words, if there is no extra cost for the speech, there’s no problem.
So a pastor can condemn a politician from the pulpit. But his church can’t run a radio ad with tax-deductible funds sending the same message to the community. Likewise, it can’t donate to a candidate’s campaign or a political party.
The Commission also made the sensible recommendation that the tax exemption death sentence only apply in situations where the spending is “willful and substantial or frequent.” In other cases, the IRS would assess a tax based on the amount spent. This would recoup the value of the tax deduction. It would also free the IRS from policing political speech unnecessarily.
Vague laws that chill speech violate the First Amendment rights of America’s religious groups and charities. So Trump is right. Destroy the amendment, and replace it with something workable, constitutional, and reasonable.
David Keating is President of the Center for Competitive Politics, the nation’s largest organization dedicated solely to protecting First Amendment political rights.