(This is breaking news and will be updated)
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The prohibition on religious organizations being involved in certain political acts, the so-called Johnson Amendment, for all in intents and purposes is over. The Internal Revenue Service (IRS) and religious organizations led by the National Religious Broadcasters and Intercessors for America, together filed a joint motion for entry of a consent judgement asking for declaratory relief.
The relief would settle a case filed by the religious organizations last year, which claimed that the Johnson Amendment violated their First Amendment rights to the freedom of speech and free exercise of religion, their Fifth Amendment rights to due process of law and equal protection under the law, and the Religious Freedom Restoration Act.
The United States District Court, Eastern District of Texas in Tyler, was asked to enter declaratory relief that the Johnson Amendment unconstitutionally prohibits 501(c)(3) organizations from engaging in political speech and injunctive relief to prohibit enforcement of the Johnson Amendment insofar as it operates to prohibit political speech.
The parties agreed in the filing that the court has the power to provide the injunction with respect to the plaintiffs request under the U.S. Constitution and the Judiciary Act of 1789. A key element of the argument in the amended complaint is that the amendment has been on the books since 1954 but is rarely enforced.
“The IRS generally has not enforced the Johnson Amendment against houses of worship for speech concerning electoral politics in the context of worship services,” the plaintiffs argued in a court filing.
A spokesperson for National Religious Broadcasters has not responded to a request for comment. However, leaders at nonprofits were quick to react.
“This court filing is deeply concerning, furthering an assault on the bedrock principle that charitable organizations must remain nonpartisan in law, fact, and purpose in order to serve their missions and communities,” Diane Yentel, President and CEO of the National Council of Nonprofits, said via a statement. “This action — long sought by President Trump — is not about religion or free speech, but about radically altering campaign finance laws. The decree could open the floodgates for political operatives to funnel money to their preferred candidates while receiving generous tax breaks at the expense of taxpayers who may not share those views,” she said via the statement.
Charitable nonprofits are among the few remaining trusted spaces where people come together across differences to solve community problems, and undermining the law that protects their nonpartisanship could severely damage the integrity and effectiveness of the entire sector, according to Yentel.
The Johnson Amendment is part of the federal tax code. It prohibits all 501(c)(3) nonprofits from endorsing or opposing political candidates. It is named for President Lyndon Johnson, who as a United States senator from Texas introduced a preliminary draft of the law in July 1954.
On May 4, 2017, Trump signed an executive order during his first term “to defend the freedom of religion and speech” with the intention of easing the Johnson Amendment’s restrictions.
Yentel said that a majority of nonprofit, faith, philanthropic, and public service communities support the Johnson Amendment and oppose efforts to repeal it. More than 5,800 nonprofits from 50 states have signed the Community Letter in Support of Nonpartisanship. In excess of 4,300 faith leaders, more than 100 denominations, and major religious organizations have signed public letters defending the law. Law enforcement and public watchdog organizations have echoed these concerns. Polling data consistently demonstrates public backing for the policy, with 72 percent of Americans and nearly 90 percent of evangelical leaders agreeing that religious leaders should not endorse candidates from the pulpit, according to data from the National Council of Nonprofits.
“Allowing certain organizations — such as churches — to engage in political activity creates confusion and erodes public trust in the entire nonprofit sector. Our organizations are among the most trusted institutions in the country, and the Johnson Amendment has played a major role in earning that trust,” according to Akilah Watkins, president and CEO of Independent Sector. “We must keep politics out of charity — period.”
