Battle rages over tax rules for churches

Proponents of rolling back IRS restrictions on churches and charities aren’t giving up despite their failure to secure a provision in tax-reform legislation.

Repealing or weakening the so-called Johnson Amendment, enacted in 1954, has long been a priority of the religious right. Evangelical leaders say the rules barring churches from participating in campaign activity infringe on freedom of speech. It puts them at odds with many other Christian groups, and organizations representing other religions, who say the change is unneeded.

President Trump brought the issue to a heightened prominence during the presidential campaign and in May signed an executive order “to protect and vigorously promote religious liberty.” He pledged during the signing ceremony to seek the repeal of the Johnson Amendment.

House and Senate Republicans have introduced legislation to eliminate or weaken the amendment, and language along those lines was included in an early version of the GOP’s tax-reform bill. But the Senate parliamentarian stripped that language out, ruling it could not be included under special budgetary rules.

Now advocates for scaling back the Johnson Amendment are eyeing other legislative vehicles, including the massive government funding package that lawmakers are expected to approve next month.

“We think that the Johnson Amendment is unconstitutional,” said David Christensen, of the Family Research Council, the conservative nonprofit run by Tony Perkins. “It’s a priority for our organization to try and see it severely mitigated.”

“As far as the vehicle, we’re optimistic that in the near future that there might be an option to try and tack this to something,” Christensen said.

While pastors, imams and rabbis may speak on political policy issues — such as abortion — the Johnson Amendment bars them, and any other organization classified as a 501(c)(3) nonprofit, from explicitly endorsing or urging support for a candidate for public office.

The Family Research Council and other conservative groups say that the law has a chilling effect on religious leaders, making them afraid of broaching any political topics at all. They also say the IRS rules have been inconsistently applied.

There are roughly 1.2 million 501(c)(3) nonprofits in the United States, and the issue has sparked a massive lobbying battle, with thousands of other groups seeking to keep the Johnson Amendment in place.

“Is an existential threat to [the] nonprofit and foundation
community. We exist and are successful when we are nonpartisan,” said David Thompson, the vice president of public policy at the National Council of Nonprofits. “We don’t check voter registration when people walk in. We exist to bring the community together.”

“You can preach to anything and everything with the limit of saying ‘Our church or our soup kitchen endorses so-and-so’ or ‘This bucket of soup is brought to you by our donors who support so-and-so for city council,’ ” he added. “You can proselytize for Jesus; you can’t proselytize for candidates.”

Outside houses of worship, religious leaders are free to support candidates or talk about election issues. The ban on speech only applies to the pulpit.

A motley group of more than 5,000 religious and secular nonprofits wrote to Capitol Hill warning that the repeal of the Johnson Amendment could undermine the impartiality of churches and charities, hurting their mission, part of a multi-letter effort to keep the law on the books.

The groups on the letter included the American Red Cross, the Anti-Defamation League, Habitat for Humanity International, the Hindu American Foundation, The Michael J. Fox Foundation, Public Citizen, the Baptist Joint Committee for Religious Liberty, American Atheists and the American Jewish Committee.

“The reason this has energized so many is because it is a fundamental threat to the Constitution and to our democracy by politicizing civic instructions that have not been politicized,” said Marge Baker, the executive vice president of the People for the American Way, a liberal group that has been lobbying on the issue.

Meanwhile, the Alliance Defending Freedom has led the charge among conservatives seeking the repeal of the Johnson Amendment. It fired off a letter on behalf of 4,000 pastors, though there were no specific signatories aside from Michael Farris, the leader of the group.

“Religious freedom and the freedom of speech are the bedrock principles upon which our nation was founded. If the ‘separation of church and state’ has any true meaning, it is this: to keep the government from controlling America’s pulpits,” the letter reads.

Political candidates have long made campaign stops at churches, an activity that is permissible as long as the candidate does not veer into election matters.

Both Democratic candidate Hillary Clinton and Trump, as a GOP presidential candidate, were hosted at churches around the country during the 2016 presidential race.

Churches are classified as 501(c)(3)s under the tax code, but do not need to file paperwork to apply for the status, nor do they need to report income and other disclosures required of other nonprofits.

The battle over the Johnson Amendment has been the “most titanic lobbying efforts I have seen in the 30 years that I’ve worked for the Anti-Defamation League,” said Michael Lieberman, the director of the Jewish group’s Civil Rights Policy Planning Center.

“The real reason people want to support this … has nothing to do with politics or policy, it has to do with elections,” he said.

Campaign finance watchdogs have gotten involved in the fight, warning that the repeal of the amendment would unleash a new wave of “dark money” into elections — a term used to describe money that is spent in
secret.

Should a repeal pass, “it’s going to be a brand new unregulated space,” said Lisa Gilbert, the vice president of legislative affairs at Public Citizen. “The IRS doesn’t have capacity to grapple with it.”

The charitable community has also expressed concern with the government potentially subsiding political speech by providing tax deductions for contributions.

“You’re going to have pop-up churches that don’t have to deal with IRS,” said Thompson. “Not only do you get a tax deduction [for the donation] you give to the so-called church, there is no disclosure.”

Those who want to get rid of the Johnson Amendment say those fears are unfounded, pointing to a part of the measure floated in Congress that would allow only a “de minimis” amount of a nonprofit’s overall expenditures to go toward campaigns.

This would create boundaries to balance allowing faith leaders to endorse candidates they agree with, while not turning an organization into a political action committee.

However, because churches don’t currently have to file paperwork to the IRS, abolishing the Johnson Amendment could open up the books of houses of worship to federal scrutiny.

Jerry Johnson, the president and CEO of the National Religious Broadcasters, says such regulation would be unnecessary.

“That’s not the way a government should treat its people,” he said. “I don’t think you should have to file a report. If the IRS sees a virtual campaign operation out of something claiming to be a church, they’ll go for it.

“The government does not monitor your car speed all the time, they only notice if you’re going fast when they pull you over.”