In a Thursday proclamation at the National Prayer Breakfast in Washington, D.C., President Donald Trump promised to “destroy” the Johnson Amendment, which restricts tax-exempt entities — including churches — from engaging in partisan politics, such as donating to or endorsing a political candidate or campaign.
Locally, that idea has the support of Jerry Falwell Jr., an early and ardent Trump supporter and president of Liberty University, the world’s largest Christian college with 100,000-plus enrolled.
“[Trump’s] just sticking to his word on every single promise that he made. [The Johnson Amendment] was something he talked about when he visited Liberty a little over a year ago. When he first heard about it, he couldn’t believe that there was a restriction on free speech in the United States,” Falwell said.
Candidate Trump visited Liberty in January 2016, and Falwell personally endorsed him shortly thereafter.
In an interview Thursday, Falwell described the Johnson Amendment, a provision in the U.S. tax code, as an unconstitutional infringement on free-speech rights that he claimed is selectively enforced to mute conservative voices.
“It’s used as a club, by the [Internal Revenue Service] and the left, to silence conservatives,” Falwell said.
However, others — such as the Freedom from Religion Foundation — fear a repeal of the Johnson Amendment will flood the political climate with untraceable dark money and turn the pulpit into a partisan environment, blurring the line between the separation of church and state.
“It’s going to turn houses of worship into political action committees,” said Andrew Seidel, an attorney with the Freedom from Religion Foundation, a national nonprofit based in Wisconsin.
For the Freedom from Religion Foundation, the Johnson Amendment is not a new issue. In 2012, the organization sued the IRS, alleging it had not enforced the legislation. The lawsuit ended in August 2014, when both parties filed for a joint dismissal of the case.
Seidel noted churches, unlike other 501(c)(3) organizations such as United Way Worldwide or the Salvation Army, are not required to file financial paperwork with the IRS. Nonprofits, though tax exempt, are required to file a Form 990 detailing financial information, such as donations received and how money was used by the organization. Since churches do not file Form 990s, Seidel believes repeal will open up an outlet for dark money.
“We would have no idea who would be putting money in, and where that money would be going. There would essentially be this informational and financial black hole for mega-donors to give money to and funnel to politicians tax-free, and then write it off,” Seidel said.
Falwell argues an easy fix to avoid creating outlets for dark money would be to impose a limit on how much of a nonprofit’s gross receipts can go to supporting or opposing political candidates.
“It would provide free speech, but it would keep churches and colleges from becoming organizations that are not operating according to their charters by being too involved with politics,” Falwell said.
Seidel, however, thinks Trump’s push to repeal the Johnson Amendment is a ploy to create a funding source to funnel money into races the Republicans need to win in 2018 to retain majority control.
“It’s definitely a source of power for churches, and I think that’s one of the reasons you’re seeing this push to repeal [the Johnson Amendment],” Seidel said.
Furthermore, Seidel expressed concern about the “unique power” churches have over followers and suggested an attempt to turn the pulpit partisan would lead to “spiritual blackmail” as pastors urge parishioners to vote for candidates they, and the church, openly support for office.
Falwell also expressed the belief the IRS allows other nonprofits — such as universities — a pass on enforcement of the Johnson Amendment and that only conservatives are targeted. As evidence, he pointed to the cancellation of classes at some universities the day after Trump was elected.
“Any time a president upholds the Constitution and guarantees free speech, it has to be something that the people will applaud. I can’t imagine anybody being upset except the far left, who want to use this Johnson Amendment to silence conservatives,” Falwell said.
Seidel dismissed free-speech concerns, noting the government can attach strings to tax exemption.
“Freedom of speech is a right, for sure, but tax exemption is not,” Seidel said.
The Johnson Amendment bears the name of its author, President Lyndon B. Johnson, who wrote the legislation in 1954 while in the Senate and as a reaction to a nonprofit supporting a political rival.
Though the Johnson Amendment prohibits partisan political activity by nonprofits, it does allow “political campaign activity if conducted in a non-partisan manner,” according to the IRS website.
Nonprofits can conduct voter-registration efforts, get-out-the-vote drives, host public forums and publish issue-based voting guides as long as these actions remain nonpartisan in nature.
Though the Johnson Amendment is in the spotlight due to Trump’s recent comments, a Pew Research Center survey from August noted 64 percent of adults surveyed heard from the pulpit on issues such as religious liberty, homosexuality, abortion, immigration, environmental issues and economic inequality. However, only 14 percent reported a candidate being endorsed from the pulpit.