GOP Proposes Allowing Charities to Take Political Sides

by McGuireWoods LLP

While speaking at the National Prayer Breakfast on Feb. 2, President Donald J. Trump vowed to “totally destroy” the Johnson Amendment. This pledge was seconded by House Ways and Means Committee Chair Kevin Brady, R-Texas, in a speech at the Conservative Political Action Conference. Brady stated that the House GOP tax reform proposal would eliminate the Johnson Amendment and allow charitable organizations to take sides in politics.

In 1954, the Johnson Amendment to Internal Revenue Code section 501(c)(3) added a requirement that an organization cannot be exempt from federal income tax under Internal Revenue Code section 501(a) as an entity described in section 501(c)(3) unless it does not, directly or indirectly, “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.” This provision prohibits contributions to political campaigns and any form of public statements regarding candidates for public office. As a result of this limitation, any political campaign activity of a charitable organization can result in revocation of the organization’s tax-exempt status.

The Johnson Amendment was adopted by a Senate floor amendment to Internal Revenue Code section 501(c)(3). Then-Sen. Lyndon B. Johnson stated the purpose of this amendment was to “[d]eny [] tax-exempt status to not only those people who influence legislation but also to those who intervene in any political campaign on behalf of any candidate for any public office.”  When enacted, the amendment was not controversial, and it has been modified only once, in 1987, to add the phrase “or in opposition to,” clarifying that charitable organizations can neither support nor oppose any candidate for public office.

Proponents believe that repeal of the Johnson Amendment gives back to nonprofits, and particularly religious organizations, their freedom of speech. President Trump stated that repeal of the Johnson Amendment would “allow our representatives of faith to speak freely and without fear of retribution.” Proponents view the Johnson Amendment as government persecution because it limits churches’ religious activities and freedom of speech. Through repeal, religious organizations would be able to express their faith and advocate their deeply held religious beliefs fully. 

Currently, there is a perception that the prohibition against political campaign activity is not enforced against churches. Only one church has lost its exemption for violating this prohibition. The Church of Pierce Creek published full-page advertisements in two major newspapers opposing then-presidential candidate William J. Clinton.  The D.C. Circuit affirmed the IRS decision to revoke the church’s tax-exempt status. Other than this instance, the IRS enforcement of the prohibition against political campaign activity against churches is rare.

Since 2008, the Alliance Defending Freedom has organized “Pulpit Freedom Sunday,” which encourages pastors to violate the prohibition. According to The Washington Post, only one of the more than 2,000 churches deliberately challenging the law since 2008 has been audited, and none have been punished. Because the prohibition is not enforced, proponents believe it should be repealed. Additionally, because violations usually go without punishment, proponents of repeal believe the prohibition disadvantages those organizations following the law. Finally, while some argue that if churches want to engage in political campaign activity they could relinquish their exempt status, others note that many churches depend on the exemption to operate and should not have to curtail their freedom of speech in order to maintain exemption.

Opponents to repeal are concerned that eliminating the prohibition against political campaign activity would erode the separation of church and state. They view tax-exempt status as a privilege and not a right; therefore, an organization can either follow the rules or relinquish its tax-exempt status. Additionally, opponents are concerned that repeal would allow people to donate to a charity that, in turn, would transfer the money to a political candidate without any oversight. Furthermore, some clergy see no reason to lift the prohibition, as political endorsements could divide congregations and create pressure to make endorsements, and clergy and others, as individual citizens, already have the ability to speak out on social and political issues.

Opponents also believe repeal would change what constitutes a nonprofit. Currently the limits on charities’ political campaign activity provide a dividing line between charities and social welfare organizations, and political action committees. There is also a concern that, by removing the prohibition, political organizations may essentially become charities, allowing them to raise funds on a tax-deductible basis. Similarly, opponents believe repeal of the prohibition will create issues similar to those that have arisen within section 501(c)(4) organizations requiring the IRS to monitor whether charities are engaging in too much political activity to justify continued exemption under section 501(c)(3).

Although the focus has been on churches and religious organizations, the prohibition against political campaign activity applies to all charitable organizations described in section 501(c)(3). Repealing the prohibition would allow schools, colleges, universities, hospitals, and any other charity to advocate for or against candidates for public office. The National Council of Nonprofits expressed strong opposition to the repeal of the Johnson Amendment. It stated that nonpartisanship is vital to charities, and nonprofits already have First Amendment rights, as they are allowed to advocate in furtherance of their individual missions. The Council on Foundations stated that a repeal would “cause irreparable damage to the philanthropic sector — which strives to operate with a level of integrity that is only preserved by abstaining from engagement or intervention in political campaigns.”  

Finally, opponents believe that, if the repeal is narrowly tailored to exempt only religious organizations,  more organizations probably would claim to be churches. This, they argue, would force the IRS to grapple with the difficult question of what constitutes a “church.”

Repealing the Johnson Amendment would require Congress to amend the Internal Revenue Code. In February, The Free Speech Fairness Act was introduced in the House (H.R. 781) and the Senate (S.264). This legislation would allow a section 501(c)(3) organization to make “certain statements related to a political campaign without losing its tax-exempt status.” The “statement” could be made only if it occurred “in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and results in the organization incurring not more than de minimis incremental expenses.” A second bill, H.R. 172, provides for a complete repeal of the Johnson Amendment. 

Additionally, Senate Majority Whip John Cornyn, R-Texas, asked the IRS and Department of Justice to conduct a review examining how the Johnson Amendment interacts with the First Amendment and the Religious Freedom Restoration Act of 1993. It has yet to be seen whether repealing the Johnson Amendment will be a congressional priority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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