The Johnson Amendment (proposed by then-Senator Lyndon Johnson as an amendment to H.R. 8300, which was enacted into law as the Internal Revenue Code of 1954) reads as follows:
“In order to keep its 501(c )(3) status, a charitable organization may not participate in, or intervene in (including the publishing or distributing of statement/s) any political communication on behalf of (or in opposition to) any candidate for political office.”
In other words, if charitable organizations want their donors to be able to get tax deductions for their contributions, those organizations must not advocate for or oppose any political candidate.
At various times since its passage, churches and other organizations wanting to support candidates have opposed the Johnson Amendment, insisting that it curtails their freedom of religion or speech, or both. In 2008 the Alliance Defense Fund began and promoted the Pulpit Initiative, urging pastors/preachers to violate federal law and virtually daring the IRS to revoke their privileged tax status. These and other opponents of the Johnson Amendment make essentially three arguments:
- Opponents of the Johnson Amendment argue that it violates the constitutionally protected right to the free exercise of religion.
However, in the 1990 case of Employment Division v. Smith, the United States Supreme Court held that the Free Exercise Clause of the First Amendment is not implicated by a law that burdens religious practice, so long as the law targets religious and non-religious conduct alike. The exercise of religion is not addressed or affected. The US Constitution does not guarantee the right for individuals or organizations to make a profit from the exercise of religion.
- Opponents of the Johnson Amendment argue that it violates the constitutionally protected right to free speech.
However, in the 1983 case of Regan v. Taxation With Representation (TWR), the Supreme Court upheld Section 501(c)(3), as applied to a secular organization. The Justices reasoned that a 501(c)(3) organization’s ability to receive taxpayers’ tax-deductible contributions (per Section 170) is a form of subsidy by the government to that organization. However, the government need not subsidize political activity–in that case, lobbying–because it may make the judgment that most taxpayers do not want to subsidize lobbying for causes and candidates that they do not support.
Opponents of the Johnson Amendment argue that it constitutes an entanglement of government with religion that is prohibited by the U.S. Constitution (thus, violating the so-called “separation of Church and state”).
However, the relevant legal principle forbids excessive “entanglement” between church and state, but the principal entanglement cases involve challenges to public subsidies of religious organizations. The government is permitted to fund the secular, but not the religious, activities of these organizations. However, where the secular and religious activities are too closely intertwined, the courts have struck down the underlying subsidy for fear that otherwise government officials will become too closely involved in the affairs of religious organizations, as they monitor the use of public funds. The Johnson Amendment demarcates a fairly bright line, and the IRS has sought to investigate only clear violations.
The fact is that the First Amendment of the U. S. Constitution secures the right of individual American citizens and their organizations to engage in political activity so long as they are organized under Section 501(c)(4) of the Internal Revenue Code. That provision also confers tax-exempt status, but donations to 501(c)(4) organizations are not tax-deductible under Section 170. Otherwise, if a group wants to engage in both charitable good works and political activities, it must form two separate organizations in order for donations to the charitable arm of the organization to be tax-deductible.
I would not ask other taxpayers to support my political opinions with regard to candidates for office, no matter how godly I believe those opinions to be. Nor do I choose to support the opinions and preferences of others. To do so would place an unfair burden on all taxpayers and would be a confusion between God and “Caesar” that Jesus’ teachings do not warrant.
|Arguments and responses are quoted and paraphrased from Michael C. Dorf’s article:|