Tensions between the Internal Revenue Service and the proponents of political speech from the pulpit are beginning to boil over.
While the controversy is decades old, the IRS’s restrictions on the political speech of churches and other places of worship have become a hot-button political issue in 2016.
Recently, pastors who gather each Sunday to protest these restrictions have gained national attention — even coverage from the likes of CNN and others. Their campaign is called the “Pulpit Freedom Movement,” an initiative launched by the Alliance Defending Freedom (ADF), which urges church leaders across the country to actively disobey the IRS rules that govern their speech.
The ADF is an Arizona-based nonprofit that, according the group’s page, was founded in 1994 by “Christian leaders with a mission to reverse the growing threat to religious freedom.” The ADF’s Pulpit Freedom Movement now boasts an alliance of over 4,100 pastors who seek to repeal the so-called Johnson Amendment — the provision of the Internal Revenue Code that bans certain tax-exempt organizations from endorsing or opposing political candidates.
This prohibition was introduced in 1954 by then-Senator Lyndon B. Johnson. Robert Tuttle of George Washington University Law School explains that many senators at the time voted for the amendment out of concern that nonprofit organizations were funding their opponents’ campaigns. However, “because there was little debate over the amendment or how it would influence churches, we don’t know precisely why Congress enacted the amendment,” he notes.
Whatever the impetus, the result of the Johnson Amendment is confusion over the bounds of religious, tax-exempt speech.
Erik Stanley, senior counsel for the Alliance Defending Freedom, spoke to the Tax Revolution Institute’s (TRI) Fergus Hodgson in July and shared his group’s perspective on how the Johnson Amendment has blurred the issue. “If you don’t know where the line is, and you don’t want to cross it, then you’re going to self-censor and stay back from it,” he said. “You face potential revocation of tax-exempt status and penalties [such as audits], just for speaking from the pulpit.”
Stanley also said that many churches who have been audited by the IRS as a result of their political activity simply “fold up their tents and go home, because they don’t want to mess around with the IRS.” The result is a chilling effect on free speech, according to the ADF, and it is the mission of the group’s Pulpit Freedom Movement to reverse this trend.
“The ultimate goal of Pulpit Freedom Sunday is to restore a pastor’s right to speak freely from the pulpit without fearing government censorship or punishment,” Stanley told CNN. In terms of the Johnson Amendment’s efficacy, Stanley notes that church leaders prior to 1954 enjoyed the right to speak freely without fear of losing their tax-exempt status and “exercised that right responsibly.”
“Churches were not turned into political action committees and party bosses did not set up shop in the basement of churches,” he said. “Instead, pastors spoke out as they believed their faith intersected with something that was happening in an election. Pastors should have the right to decide that issue for themselves.”
Evidently, the ADF’s appeals have not landed on deaf ears. Not only have the organization’s numbers swelled in recent years; the group has seen members of Congress — and even Republican presidential candidate Donald Trump — come to their aid.
Last July, Trump announced that the repeal of the Johnson Amendment would be included in the GOP’s official platform, and more recently, in late September, two pieces of legislation were introduced in the House of Representative that would do away with the amendment in its current form.
Of course, the opposing side of the debate raises serious concerns over any changes to the Johnson Amendment. Annie Laurie Gaylor, co-president of the Freedom from Religion Foundation, previously told TRI that nullifying the amendment would effectively “turn religious institutions into campaign halls” and “money-laundering machines.”
Similarly, Americans United for Separation of Church and State warns that “if some legislators have their way, the road to election may run through houses of worship.”
“To say that these attempts are misguided is an understatement,” writes Elise Helgesen Aguilar, federal legislative counsel at Americans United. “The narrative that opponents of the Johnson Amendment have crafted is that it curtails freedom of speech and censors religious leaders. But this is simply untrue.” Aguilar argues that churches currently have the ability to speak on political issues but are unable to explicitly endorse or oppose political candidates or parties. Furthermore, she notes, “pastors and other religious leaders can engage in partisan politics in their own individual capacity. They just cannot do so when acting on behalf of their tax-exempt organization.”
With the two sides of the controversy seemingly light-years apart, the IRS has previously attempted to clarify its position on the matter. However, despite the agency’s best efforts, the Johnson Amendment’s scope, reach, and enforcement remain far from cut and dry.
Edward Zelinsky, a law professor at the Benjamin N. Cardozo School of Law of Yeshiva University, considers in an article in OUPblog why the IRS’s interpretation of the rule can be troubling:
“For example, under the IRS’s ‘issue advocacy’ standard, a minister’s sermon could jeopardize her church’s tax-exempt status if the minister from her pulpit supports or opposes abortion rights, same-sex marriage, gun control, the death penalty, or the Confederate flag, should the IRS determine this subject to be ‘a prominent issue’ in a current electoral campaign.”
While some hardliners may find it difficult to find common ground on this issue, Zelinsky offers a compromise: modify the Johnson Amendment, rather than repeal it. “Internal church communications should be protected from governmental interference,” he argues, “but tax-exempt institutions should not be used to divert tax-deductible financial resources to political campaigns.”
Zelinsky contends that the amendment presently “unacceptably entangles church and state for the IRS to monitor and police internal communications within churches, synagogues, mosques or other religious congregations.” By modifying the amendment as he suggests, the “prohibitions of the Johnson Amendment should be retained in Section 501(c)(3) to prevent the diversion of tax-deductible dollars to political campaigns.”
While this may indeed be a step in the right direction, the ultimate goal must be to get the IRS out of the business of determining what is or is not free speech. The Tax Revolution Institute maintains that only the Federal Election Commission (FEC), and not our federal revenue-collection agency, should define and monitor electioneering.
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