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Monday, February 06, 2017

Thoughts on the Johnson Amendment

My first encounter with the Johnson Amendment came back in 2010, while I was teaching at Drake Law School. You might recall that the Iowa Supreme Court had just struck down the state statute defining marriage as between “one man and one woman," and three of the Justices were up for a retention vote. In the midst of the wild politicking and spending in the lead up to that vote, the Reverend Cary Gordon, of Cornerstone World Outreach, sent out over 1,000 church pamphlets urging his followers to vote against retention. Indeed, he issued an open challenge to the federal government, publicly asking God to “allow the IRS to attack my church, so I can take them all the way to the U.S. Supreme Court.” The national Liberty Institute quickly offered free to provide free legal services should Gordon’s prayer be answered. It was not, however, and—as you probably know—Iowa lost three talented and dedicated jurists.

Over the last six months, the Johnson Amendment has been in the news again, as candidate Trump pledged to do away with the language that limits 501(c)(3) tax exempt status to certain non-profit organizations, so long as they don't advocate for or against political candidates. And, again, last week, President Trump vowed to “destroy” the provision, which got me wondering how mainstream church leaders actually feel about the disincentive on politicking from the pulpit.

I should say, first of all, that I don’t believe the Johnson Amendment raises any substantial constitutional issues either way. It’s history as matter of policy is a bit interesting: in 1954 LBJ, then a freshman Senator, introduced it on the floor because he faced a difficult reelection campaign, and several McCarthyist non-profits were working to oppose his bid. But I generally agree with those Courts that have said that losing a government subsidy is not a burden for First Amendment or RFRA purposes, and the fact that the exemption benefits religious and secular 501(c)(3)’s alike undermines the Establishment Clause claim. Nor, for largely the same reasons, does the Constitution require that tax exemptions to religious groups must come with an anti-politicking caveat. Indeed, 501(c)(4)’s are subject to no such restriction—though, of course, their donors don’t get a tax deduction.

So, in my world at least, the Johnson Amendment is a simple matter of policy choice. It could be that Trump objects to it for the same reasons that LBJ wanted it—he welcomes non-profit politicking while Johnson feared it.   That seems like pretty contingent reasoning, however, because the ACLU may soon be just as free as the Cornerstone Church to voice its political opinions. Instead, I think Trump is just playing to his evangelical crowd, which honestly believes the IRS has been trying to silence it for the last half-century. This, in other words, is just more showmanship.

With that said, though, I began by saying that I wondered how other churches might feel about the issue. And so I was interested to read the Baptist Joint Committee’s statement in opposition:

Politicizing churches does them no favors. The promised repeal is an attack on the integrity of both our charitable organizations and campaign finance system. Inviting churches to intervene in campaigns with tax-deductible offerings would fundamentally change our houses of worship. It would usher our partisan divisions into the pews and harm the church’s ability to provide refuge. To change the law would hinder the church’s prophetic witness, threatening to turn pulpit prophets into political puppets.

All alliteration aside, I have say that I sort of expect many mainstream churches to feel something similar. I wouldn’t dare inflict my student note on you, but I explored something like this same issue in the context of the Charitable Choice initiative.  I can think of a lot of potential responses both ways on this, but I think I’ll turn that over to the comments, if there are any…

Posted by Ian Bartrum on February 6, 2017 at 04:09 PM | Permalink

Comments

There's a long history of the church pulpit being used for political purposes in America. The abolition movement was primarily church based as was the Civil Rights movement in the south during the 1950s and 60s. It's still common for Democrats in urban states to spend the last Sunday before election day at black churches, when candidates are focusing on turnout. I'm pretty sure that Chuck Schumer and Dianne Feinstein aren't there to acknowledge Jesus Christ as their lord and savior. And I'm old enough to remember the minister at the Unitarian Church we attended in northern New Jersey give an October 1960 talk about the risks of having a Catholic president.

The supporters of the Johnson Amendment in the legal community seem to have had no problem with any of the above uses of the church for political purposes but are aghast that evangelical churches might do the same. The continued existence of this amendment puts the IRS in an impossible position of deciding just when a church goes over the line. I'm not a fan of getting political advice on Sunday morning but, unless you're sure that it will only be used against the churches and causes that you oppose, this is a law that can only cause mischief.

Posted by: PaulB | Feb 6, 2017 5:55:36 PM

Ian: Do you have any sense whether the proposals to repeal/amend the JA are (i) to craft a religion/church exemption or (ii) to allow *all* 501(c)(3)'s to engage in political activity? If the former, that would raise serious constitutional concerns, right?

Posted by: Marty Lederman | Feb 6, 2017 6:15:13 PM

The Baptist Joint Committee's full name is BJC for Religious Liberty. Their entire purpose is to lobby against any government support for religion or religious causes. To quote them in opposition to Trump's proposal as an indication of what churches think about it would be like quoting J Street for the proposition that Jews approved of Obama's UN gambit.

Posted by: biff | Feb 6, 2017 6:24:36 PM

Thanks for the interesting thoughts. Paul: I don't dispute any of what you say, in fact I've criticized the Rawlsian position in print--but I'm not sure it follows that we have to subsidize religious speech. Marty: I didn't have the sense of the carve out for churches, which I think you're right to say would cause real problems.

And, Biff, you're probably right that I should have given the BJC's full name, and you're certainly right to say that its a cherry-picked example--if I'm trying to say "most churches feel this way." But, though it may be unclear, I'm not. What I'm actually trying to say is "many churches could feel this way." In other words, I think a church that's mostly interested in being a church might feel that the JA helps protect their religious mission by giving them a reason to take politics off the table. There are, in other words, both secular AND religious reasons that we might think the JA is good idea.

Posted by: Ian Bartrum | Feb 6, 2017 7:03:30 PM

Looks as if the amendment would apply to all 501(c)(3)'s, not only religious organizations:

https://www.congress.gov/bill/115th-congress/house-bill/781/text

Posted by: Marty Lederman | Feb 6, 2017 7:40:13 PM

So much hype and very little substance, particularly from groups like BJC and AU. Arguments pro and con are more policy statements rather analysis of the constitutionality of repealing the JA.

All repeal of the JA would do would be return us to the pre-1954 world where the IRS did not police the political activities of 501(c)(3)'s.

It was constitutional in 1953, and it would be constitutional in 2017.

Posted by: JayAre44004 | Feb 6, 2017 9:11:39 PM

Hi JayAre: I don't think anyone is claiming it would be unconstitutional to repeal the JA--I'm certainly not. As I said, I think it's a policy choice--and one with somewhat ignoble origins. With that said, however, I think it might still be a policy choice that many churches have good reasons to like.

Posted by: Ian Bartrum | Feb 6, 2017 9:30:02 PM

Not mentioned so far is the IRS politicizing the process of designating 501(c)(3) non-profit status. Trump's thinking here is probably at least partly motivated by a punitive attitude toward the Deep State bureaucracy. It bears the signature of his usual modus operandi: quick decisive action, something that provokes outrage from leftist activists while at the same time appearing unremarkable to ordinary voters, an obvious rhetorical parry (in this case, status quo ante 1954). Who will be the next Sally Yates, to defy a presidential order, get canned, and start a new career making handsomely-paid speeches about martyrdom to well-heeled left-leaning audiences?

Posted by: M. Rad. | Feb 6, 2017 11:22:38 PM

Here's the language; I don't think it raises any constitutional problems:

https://www.lankford.senate.gov/imo/media/doc/2.1.17%20Free%20Speech%20Freedom%20Act.pdf

Posted by: Marty Lederman | Feb 7, 2017 9:14:54 AM

Ian: forgive me for not making clear up front that I appreciate your blog and writings.

I do disagree somewhat with the premise of the post. The idea that repeal of the JA is of somewhat ignoble origin is curious indeed when one considers the uncharacterized origin of the JA itself. The best work I've seen on this is James Davidson's 1998 piece "Why Churches Cannot Endorse or Oppose Political Candidates" (http://www.jstor.org/stable/3512457?seq=1#page_scan_tab_contents). The purpose of the JA was to preempt L. Bunker Hunt from using his tax-exempt foundation to oppose LBJ's 1954 reelection, something that greatly worried LBJ after his razor-thin 1948 election win. People whose opinions I value think that putting all houses of divine worship under IRS supervision merely to boost the reelection chances of an incumbent politician is both craven and despicable. I prefer to characterize it charitably as less than altruistic.

That understood, I fail to see anything suspect about the repeal effort. Many policy changes are proposed because of campaign promises. The Patient Protection and Affordable Care Act immediately comes to mind. Some may call it keeping campaign promises, but I suppose some may call it pandering. What might make it of somewhat ignoble origin?

As a Baptist myself, I think it is good for our churches to not endorse or be used by politicians. I trust the duly selected leadership of our churches to recognize the benefit of such a policy for themselves. The problem I have with the JA is that it takes a good idea, one rooted in Biblical doctrine (from a Baptist perspective) and uses it to empower the federal government--in fact, the IRS, of all bureaucracies. That I oppose.

Posted by: JayAre44004 | Feb 7, 2017 10:16:38 AM

There's a rhetorical two step by repeal supporters. There are two separate tax benefits at play: the first is the tax exemption for the church itself and the second is giving tax breaks to people that donate to churches. A church has the option of taking only the first benefit and not having to worry about the Johnson amendment. Taxing churches plausibly interferes with religious liberty, treating money donated to churches the same as money spent on vacations doesn't raise any issues at all. The deduction is a pure give away that not only can, but should, be closely tailored to subsidize only publicly beneficial activities.

Posted by: Brad | Feb 7, 2017 10:45:25 AM

Brad: You are correct, there are two separate benefits. However, both benefits accrue to other non-taxable 501(c)’s, most notably labor unions, which are exempt under 501(c)(5) and whose members dues are also tax deductible on Schedule A. Curiously, churches are singled out in these discussions. But I hear very little discussion about labor unions and two separate tax benefits.

How about let's simply revert back to 1953 and treat churches like labor unions? As noted above, the problem (from LBJ's perspective) was McCarthyite non-profits who threatened LBJ's reelection, not churches.

Posted by: JayAre44004 | Feb 7, 2017 11:29:10 AM

For some views of tax and nonprofit experts on this issue, interested readers may want to turn to:

https://medium.com/whatever-source-derived/the-johnson-amendment-lives-another-day-c71f0178951b#.gxygt34jx

and my reply:

https://medium.com/whatever-source-derived/holy-dark-money-batman-461879bcecc2#.barg7w5ca

as well as the thoughtful comments here:

https://surlysubgroup.com/2017/02/04/what-would-happen-if-the-johnson-amendment-were-repealed/

All of these posts make the central point that electioneering by c(3) organizations opens the possibility of an unlimited federal matching grant for political expenditures, which is fairly certain to benefit well-heeled interests over others.

As a tax nerd, I will also mention that c(4) organizations receive important subsidies in addition to exemption, such as exemption for donors from the federal gift tax, as well as the ability of the donor to contribute appreciated assets without paying tax on the built-in gains.

Posted by: BDG | Feb 7, 2017 11:41:57 AM

This matter was also addressed today at Dorf On Law.

"It was constitutional in 1953, and it would be constitutional in 2017."

Who is to know? Constitutional doctrine is not the same in various respects.

"treat churches like labor unions"

Because they aren't like them in certain respects, especially given First Amendment concerns? As to "IRS supervision," if you live in the world, you will have to be under the supervision of the government in some fashion. This includes if you run charities and get government benefits in some fashion.

And, citing how Johnson supported this because of his own political needs feels a bit too much like Justice Thomas citing the racist nature of the person who supported a ban on corporate involvement in campaigns.

Politicians support things for selfish reasons generally. The separation of church and state aspects of the provision still overlapped with Democratic values of the time (see also the opinions of various justices appointed by Democrats at that time). And, it received wide support at the time, no matter Johnson's own reasons.

I'm unsure though am wary of what a repeal would bring and appreciate the discussion here and elsewhere to inform me about the issues.

Posted by: Joe | Feb 7, 2017 12:28:10 PM

Super interesting stuff. Just to be clear JayAre, because I wasn't. I think we agree on most things. The "ignoble origins" I was referring to are those of the JA itself, not the repeal.

Posted by: Ian Bartrum | Feb 7, 2017 12:50:06 PM

@JayAre44004
I imagine part of the reason churches get a lot more attention than labor unions is because they are collectively a lot bigger than labor unions.

In 2015, charitable donations totaled $373.25 billion, of that 32% -- $119.44 billion -- went to religion. (https://www.nptrust.org/philanthropic-resources/charitable-giving-statistics/)

Union dues meanwhile totaled only $14 billion back in 2011. (http://www.nilrr.org/2012/03/31/unions-rake-in-over-14-9-billion-in-dues-per-year-from-cbas/)

Also, union dues and church donations are not similarly situated. Donating to a church is more similar to donating to a an opera company, and they too are not allowed to endorse candidates.

Personally, I would be fine with eliminating deductions for all charitable giving. If you want to donate, donate your own money not 70% of your money and 30% of all of ours.

Posted by: brad | Feb 7, 2017 12:50:43 PM

I tried to write about this, a million years ago: http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/2/ I think my views might have morphed somewhat, in that it seems to me that many of concerns I expressed in the essay are mitigated by the IRS's policy of keeping a pretty wide berth. If that policy changed, then I suppose the law might again seem problematic.

For what it's worth, my colleague Lloyd Mayer did a really thorough study of the religious-freedom dimensions of the Johnson Amendment issue: http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1679&context=law_faculty_scholarship

Posted by: Rick Garnett | Feb 7, 2017 12:56:43 PM

Prof. Garnett, I tried to look at the document from Prof. Mayer, but his focus seems to be primarily on political speech from the pulpit.

However, it is the more public types of political speech, like that implicated in Branch Ministries v. Rossotti that are most problematic, and are most likely to have a corrupting influence if allowed generally. If nothing else, the Johnson amendment gives truly non-political charities like food pantries a way to avoid being pressured to make political endorsements that they would really rather not make.

Addressing the abstract of your earlier article, if a church feels it religiously necessary to make public political statements, nothing legally prevents the church from forgoing 501(c)(3) status in order to do so. Indeed, if the availability of public money is already corrupting religious organizations into silence, would that be an argument to withdraw tax-exempt status from all religious organizations, or at least to withdraw the tax-exempt status of religious donations, in an attempt to free those organizations of the burdens of proving that they are charitable rather than political or business organizations? (I am assuming that it is reasonable not to extend tax-exempt status to for-profit businesses or political campaigns that claim to be charitable organizations, but clearly are not.) In short, if government money is corrupting religious organizations, is the right solution trying to modify the restrictions on that money, or taking the money away entirely?

Personally, I like the status quo. Having the government subsidize charitable religious organizations while not subsidizing political ones seems like an appropriate compromise. It avoids creating a feedback loop that could end in an establishment of religion, while providing charitable religious organizations with wide leeway in running their internal activities. I also agree that a hands-off approach to politics from the pulpit is the right policy for the IRS. This is a rule that, like many, needs to only be enforced in the egregious cases, not the everyday ones.

Posted by: Greg | Feb 7, 2017 4:36:45 PM

@Brad,

"The deduction is a pure give away that not only can, but hould, be closely tailored to subsidize only publicly beneficial activities."

I don't see much publicly beneficial about a lot of things churches do. Certainly, the popularity of the various evangelical churches seems to be a great problem to me.

Posted by: Jr | Feb 8, 2017 4:18:00 AM

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