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Free Speech and the Johnson Amendment

May 29, 2017

In 1954, then Senator Lyndon Johnson proposed and helped pass an amendment to the United States tax code.  LBJ, known for his “bludgeoning” actions toward political opponents, included this amendment as a means to fight against an opponent who was backed by a nonprofit group, and which was labeling him as a communist.  At this point, churches were not involved, but regardless, the Senator included religious organizations.  The Amendment is now referred to as the Johnson Amendment.  

“[T]he legislation states that tax-exempt organizations “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of [or in opposition to] any candidate for elective public office.””  If a tax exempt organization is found to be in volition of the amendment, said organizations would lose their tax exempt status and face IRS infringement.   

At a recent prayer breakfast, the President commented, “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.”  He recently signed an executive order with some limits, preventing the IRS from taking “adverse action” against churches or other religious organization as long as they do not specifically endorse a candidate.  This protects religious groups, such Little Sisters of the Poor, from paying for abortion, a practice they strongly oppose.  

At issue here is the Federal government’s ability to chill speech by religious organizations especially with regard to faith held beliefs regarding moral issues such as the definition of marriage or abortion.  In recent years, the IRS added tests under which it could decide non-compliance. The tests are vague at best.  One such test asks “Whether the statement is delivered close in time to the election.”  Another test involves policy, “Whether the statement expresses approval or disapproval for one or more candidates’ positions and/or actions.” Under these tests, an abusive branch of government could infringe on sacred rights simply because the non-profit disagrees with a stated political agenda.

With recent IRS abuses toward conservative non-profits whose legal status allowed it political speech, it seems to us that the President is wise in limiting federal meddling in chilling speech. It is also wise for Congress to pass reasonable legislation which protects clergy from IRS interference.  One group, the Commission on Accountability and Policy for Religious Organizations, has suggested that religious groups ought to be free in speaking what they believe, but be barred from directly donating tax exempt funds to candidates, political packs, or political parties. In other words they write, “if there is no extra cost for the speech, there’s no problem.”  

We hope that Congress will finish the task the President began with appropriate free speech legislation.  

of the Democratic minority in the Senate to block these nominations is now limited because former Senate Majority Leader Harry Reid instituted the “nuclear option” when the Democrats were in control of the Senate.  As a result it will only take 51 votes to approve these judicial nominations, not sixty votes.

Our view:  The filling of these vacancies with men and women, who are dedicated to follow the U.S. Constitution, as envisioned by our county’s founders, is long overdue. 

Mark, John and Bill


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