President Trump vowed in yesterday’s National Prayer Breakfast, his first as chief executive, to make good on a campaign promise to repeal the law that restricts political speech from the pulpit.
“I will get rid of, totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear,” he said on Thursday (Feb. 2) to a gathering of 3,500 faith leaders, politicians and other dignitaries from around the world, including King Abdullah of Jordan.
“I will do that, remember,” Trump added.
The Johnson Amendment, named then-Texas Sen. Lyndon Johnson, is a 1954 law that prohibits tax-exempt houses of worship from engaging in partisan politics. They can neither endorse nor oppose candidates or political parties without risking their tax-exempt status.
It is one of the brightest lines in the legal separation between religion and politics. Under the provision, which was made in 1954, tax-exempt entities like churches and charitable organizations are unable to directly or indirectly participate in any political campaign on behalf of, or in opposition to, any candidate. Specifically, ministers are restricted from endorsing or opposing candidates from the pulpit. If they do, they risk losing their tax-exempt status.
Considered uncontroversial at the time, it was passed by a Republican Congress and signed into law by President Dwight D. Eisenhower, a Republican. Today, however, many Republicans want to repeal it.
Elsewhere, Jeremy Peters writes in the New York Times why “destroying” this law is a bad idea. First, he describes what the law does not do:
The rule does not prevent churches — or other charities — from speaking freely. Religious leaders and churches have been weighing in on political issues for as long as there have been pulpits. The Rev. Dr. Martin Luther King Jr., Jerry Falwell, Pat Robertson, Jeremiah Wright and thousands of clergy on any given weekend have been energetic advocates of political or social causes.
The rule does not even prohibit clergy from endorsing a candidate. Rather, it says that if a religious leader endorses a candidate, then his church cannot receive the significant benefit of tax exemption, and that people cannot, therefore, make a tax-deductible contribution to that church….
…this would likely create a huge new loophole in the campaign finance system. The donations we make to political candidates are not now tax-deductible. But if this provision is repealed, you could make a tax-deductible contribution to a church (or other charity) that is campaigning for a political candidate.
Houses of worship and other charities could become unregulated vessels for campaign contributions, which taxpayers would then have to partly underwrite because they were deductible. It would be a disaster for our political system, already reeking of corruption.
It also would be a disaster for religion, he says.
Political fixers will try to funnel money through houses of worship. The temptations for clergy members would be intense. Yes, let’s fix the day care center in the basement! All we have to do is endorse that well-meaning candidate and organize a volunteer brigade for him on Election Day.
It may be that the Internal Revenue Service could clarify its current rules to make it easier for churches to navigate, but the harm of a repeal would far outweigh the benefits.
When churches move from being independent vehicles for political causes and become arms of political parties, they lose their prophetic voice.
Worse, they lose their spiritual credibility. As a state legislator in Virginia, James Madison made the case that subsidizing religious organizations undermines religion.
Writing in the Atlantic, Emma Green says that. among other things, repealing the amendment would open a huge, tax-exempt, door for more money to enter politics.
Since 2008, a group of predominantly conservative, Protestant churches have participated in Pulpit Freedom Sunday—a day started by the conservative legal group Alliance Defending Freedom, when hundreds of pastors across the country give explicitly political sermons in protest of the IRS’s rule. The movement has been growing, and religious leaders will often mail tapes of their sermons directly to the agency to showcase their defiance.
The IRS doesn’t often go after these churches, though. Agency leaders have emphasized the importance of educating religious organizations about what is and is not legal, rather than aggressively initiating audits or trying to revoke the non-profit status of houses of worship….
…Yet even beyond purposeful protests like Pulpit Freedom Sunday, religious leaders seem to openly defy the ban on participating in political activities. The televangelist Mark Burns has openly stumped for Trump, as has Liberty University president Jerry Falwell Jr. And at the start of the Democratic National Convention, the Decatur, Georgia, pastor Cynthia Hale prayed for Hillary Clinton to become president. Even if the IRS would not see these actions as formal violations of the law, the difference between pastors electioneering and speaking as private citizens “is a fine distinction that is easily evaded,” said Galston.
Critics of the agency, including some progressive religious groups, argue that the IRS should put more resources toward enforcing the electioneering ban. The main question, said Alan Brownstein, a law professor at the University of California, Davis, is not whether religious groups and leaders should be able to express their views—it’s whether that activity should be subsidized by the government. “Pastors can say whatever they want, as can anyone else,” he said. “The question is whether a tax-exempt institution can say whatever it wants and retain its tax-exempt status, and whether the pastor as an official can use his or her position in the tax-exempt institution to engage in electioneering.”
Acknowledging that the tax-exemption is a kind of public subsidy for religion (and other charities) Richard Balmer writes, that this serves a civil and social good. Writing in the LA Times, he says that repealing the law would be bad for religion:
…there is another reason why the Johnson Amendment is a good idea and should not be repealed. Religion has flourished in the United States as nowhere else in the world precisely because the government has (for the most part, at least) stayed out of the religion business, and vice versa.
Despite the religious right’s persistent attempts to circumvent it, the 1st Amendment is the best friend that religion ever had. It ensures that there is no established church, no state religion, and that religious groups can compete for adherents on an equal footing. Evangelicals, by the way, have historically fared very well in that free marketplace.
The Johnson Amendment both derives from, and builds upon, the 1st Amendment. It reinforces the wall of separation between church and state that was advocated by Roger Williams, founder of the Baptist tradition in America. We should also remember that Williams wanted a “wall of separation” between the “garden of the church” and the “wilderness of the world” because he feared that the integrity of the faith would be compromised by too much entanglement with politics.