The newly unveiled Republican tax reform bill includes a provision that will likely make leaders of the Religious Right very happy—by amending a part of the tax law that keeps churches from engaging in explicit political advocacy.
Embedded within the bill’s more than 400 pages is a small provision that would change an aspect of the so-called “Johnson Amendment,” a provision of the tax codes that prohibits churches, faith communities, and other non-profits from outright endorsing political candidates.
Under the Johnson Amendment, it is illegal (albeit rarely enforced) for a faith leader to, say, endorse a candidate from the pulpit. Some conservative leaders—including paragons of the Religious Right and Trump’s own lawyer Jay Sekulow—have long argued this law infringes on their freedom of speech or religion.
The GOP’s new bill appears to placate these concerns, using the following language:
“…An organization described in section 20 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose, nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings, but only if the preparation and presentation of such content—
(A) is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and
(B) results in the organization incurring not more than de minimis incremental expenses.’’”
Watchdog groups such as the Center for Inquiry—who defend the Johnson Amendment as crucial to preserving the separation of church and state—were quick to decry the proposed change.
“The House Republican tax bill released today unconstitutionally privileges churches and other houses of worship by elevating them to a special class of nonprofit, free to electioneer for political candidates while remaining exempt from taxation,” the Center for Inquiry said in a statement.
Maggie Garrett, legislative director of Americans United for the Separation of Church and state, echoed this frustration.
“President Trump and House leadership are trying to change the tax code so they can pressure churches for endorsements,” she said in a statement. “They very clearly want to use congregations as political tools for their own benefit. This flies in the face of the American promise of separation of church and state, and it’s blatantly unconstitutional. Every American should be paying attention to this reckless effort to erode one of our most important national principles.”
The provision is not a complete repeal of the Johnson Amendment. As written, it would only free up religious communities—not all non-profits—to endorse candidates and appears to prohibit churches from going out of their way to campaign for a candidate outside of their normal religious activities.
But LSU law school professor and the former IRS attorney Philip Hackney says this change matters: It would allow a pastor to endorse a candidate from the pulpit without fearing repercussions so long as they don’t spend additional funds to campaign and it occurs “in the ordinary course” of religious activities. For megapastors with large churches and even larger followings, that could have a major impact.
“It’s a repeal of the Johnson Amendment with respect to religious organizations,” Hackney told ThinkProgress. He added that while a faith leader couldn’t “just go out and buy ads,” they would have other powers: “If a televangelist comes on TV and does a regular program…It costs nothing [under this provision] for them to say ‘Hey, you oughta vote for Clinton, Obama, or Trump.’”
“If a televangelist comes on TV and does a regular program…It costs nothing [under this provision] for them to say ‘Hey, you oughta vote for Clinton, Obama, or Trump.’”
Loyola University Chicago School of Law professor Sam Brunson, an expert on Johnson Amendment issues, agreed.
“It looks like a pastor could say, during ordinary Sunday services, something like, ‘You have a religious obligation to vote for Joe Biden,’” Brunson said in an email to ThinkProgress. “On the other hand, the church couldn’t print that in its newsletter. And the pastor probably couldn’t say it at, for example, a church Halloween party, at least in her capacity as pastor.”
The bill’s inconsistent language could also have major repercussions. Although the section header specifies “churches”—a catch-all legal term for faith communities—the text only refers to an organization operating with a “religious purpose.” Hackney says that means other religiously affiliated organizations may also be freed up to endorse candidates if the bill becomes law.
“My guess is, if I am a religious hospital, I could potentially use this. If I’m a religious school, I could potentially use this,” he said.
Brunson noted other issues with “ambiguity at the edges.”
“What if a Mormon leader endorsed a candidate at General Conference?” he said. “What if a church holds a special political service the Sunday before Election Day, rather than its ordinary religious service?”
The change may seem small, but Hackney noted it could also transform churches into something akin to a new form of SuperPAC. Although the impact of the current language is far more limited than a full repeal, someone could still make a tax-deductible to a church that openly supports their preferred candidate, for instance, as opposed to making a non-tax-deductible donation to a specific campaign.
The proposed change is hardly the first attempt by Republicans to further politicize churches. President Donald Trump signed an executive order in May that chipped away the Johnson Amendment’s power, and House Republicans passed a spending bill in September that would make it difficult for the IRS to enforce violations of the provision.
Meanwhile, support for the change is low. A 2016 PRRI poll found that 71 percent of Americans oppose allowing churches to endorse politicians while retaining their tax-exempt status, as do majorities of every major U.S. faith group (including white evangelical Protestants).