What Would Repealing the Johnson Amendment Actually Mean for Churches?
How a repeal of the amendment that prohibits political endorsements could affect pastors and churches.

During the 2016 election season, many churches and pastors have likely heard that Republican presidential nominee Donald Trump has indicated he is in favor of repealing the Johnson Amendment, which governs the political activity of churches. The repeal of the Johnson Amendment prohibiting political activity by nonprofits, including churches, is also a stated goal of the 2016 Republican Party Platform.

While churches and pastors may not have heard the term “Johnson Amendment” before this year, they were probably already aware of its effects, even if unaware of its name and origin.

What is the Johnson Amendment?

Attorney and Church Law & Tax Editorial Advisor Frank Sommerville says the Johnson Amendment applies to organizations that are recognized as tax-exempt under Section 501(c)(3) of the Internal Revenue Code. That part of the Code states that “no substantial part” of an organization’s activities can be “to influence legislation.”

A safe harbor limit describing the maximum amount of allowable lobbying was added to the Code many years later, says Sommerville, but it does not allow churches to elect the safe harbor, so the IRS could, in theory, claim that a church’s lobbying was “substantial” even if it was less than the safe harbor limit.

Section 501(c)(3) of the Code also states that tax-exempt organizations cannot “participate in or intervene in (including the publishing or distributing of statements) any political campaign on behalf of or in opposition to any candidate for public office.”

Currently, churches need to adhere to the IRS guidelines regarding political participation in order to be assured of maintaining their tax-exempt status. That’s the real consequence churches risk by violating what the Internal Revenue Code says on the issue.

Stuart Lark, an attorney and Church Law & Tax editorial advisor, offers insight on what the repeal of the amendment would entail: “Because the Johnson Amendment is a provision in Section 501(c)(3) of the Internal Revenue Code, it would require legislation to eliminate the amendment.” That means it would take an act of Congress.

What Would a Repeal Mean?

Many pastors and churches could see the repeal of the Johnson Amendment as a strictly positive scenario. It would allow churches and pastors to be explicit about their views, informed by their religious beliefs, on a variety of political topics, including specific candidates and elections.

Some organizations, such as the Alliance Defending Freedom (with its “Pulpit Freedom Sunday”), see that as an important right churches should be able to exercise without limitation or penalty.

Is there a downside? Could the repeal of the Johnson Amendment have any negative effect on churches? Some think it could.

“One of the concerns out there is that churches would . . . become so politically focused that they forget that the primary mission is spreading the gospel and discipling people,” says Sommerville, “not electing people to office, although those are all interrelated.”

But apart from concerns about whether pastors’ ability to openly express their political views from the pulpit would further the mission of the Christian church, there are additional ramifications that could—at least potentially—be a cause for concern.

“There are a complicated set of laws in our country that regulate how campaigns can be financed, and these laws generally do not provide tax deductions for contributions to political campaigns,” Lark explains. “Because contributions to 501(c)(3) organizations are tax-deductible, there is a concern that permitting such organizations to support political candidates for office would create a backdoor for using tax-deductible contributions to finance political campaigns, and perhaps getting around other campaign finance law.”

“Just as 501(c)(3) organizations have been misused for other purposes, there would be a real temptation to co-opt such organizations, and their tax-deductible contributions, for substantial political campaign activity.”
—Stuart Lark

While ministries may not like to think that others would use their churches for unethical purposes related to campaign finance, they should be aware that it could happen. If the Johnson Amendment were to be repealed, it would also open the door for other nonprofits—not just churches—to influence elections in this way.

“Just as 501(c)(3) organizations have been misused for other purposes, there would be a real temptation to co-opt such organizations, and their tax-deductible contributions, for substantial political campaign activity,” Lark explains.

Erin Bradrick, writing in Nonprofit Quarterly, notes that when it comes to current 501(c)(3) restrictions, including the Johnson Amendment, those guidelines are there “to ensure that all 501(c)(3) organizations, including religious institutions, operate for the social and public benefit purposes for which they were created and not for partisan interests or private benefit.”

“Although general 501(c)(3) rules should, in theory, constrain such activity,” says Lark, “applying these rules effectively may require significant additional regulation and reporting that could burden all 501(c)(3) organizations, including churches.”

There’s also reason to believe churches would be at a higher risk of being abused.

“Churches may be particularly susceptible to such abuse due to the fact that they are not required to file an annual informational return with the IRS, as most other organizations exempt under Section 501(c)(3) are,” says Bradrick, “and therefore do not necessarily receive the same level of oversight and review with respect to their activities.”

The ECFA (Evangelical Council for Financial Accountability) has offered its view on whether the section of the Code disallowing political involvement by churches should be repealed.

“The law prohibiting political campaign participation and intervention by 501(c)(3) organizations should not be repealed,” an ECFA commission concluded. “The Commission believes that a public policy purpose is served by prohibiting 501(c)(3) tax-exempt organizations from expending funds for political campaign-related activities.”

While the ECFA commission is not in favor of a repeal, it does advocate for a modification to the current IRS rules: “Definitional guidance should be added to the law to clarify that certain communications that are made in the ordinary course of a 501(c)(3) organization’s regular and customary exempt-purpose activities and that do not involve an expenditure of funds do not constitute participation or intervention in a political campaign.”

The ECFA commission’s conclusion offers pastors and churches something to consider as they weigh whether they would agree or disagree with a potential future repeal of the Johnson Amendment.

Clearly there’s no guarantee that the Johnson Amendment will be repealed in the future, even if that objective has become an official stance of one of the country’s two major political parties. However, pastors and churches are likely to encounter conversations surrounding the topic of repeal in this election and beyond. It may be that it’s in the best interests of most churches to repeal the amendment—but first, churches should carefully consider if the potential gains justify the potential problems a repeal could create.

In Depth:

For more information on this topic, see the Church Law & Tax resources below:

Elizabeth Jackson is a freelance writer living in Wheaton, Illinois.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations."

Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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Posted: October 6, 2016

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