Losing the Johnson Amendment Would Destroy the Unique Political Role of Nonprofits

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If the president does what he says he will do, 501(c)(3) nonprofits and churches will be able to become active participants in electoral politics, directly supporting candidates and raising funds for political purposes. At last week’s National Prayer Breakfast, he renewed his campaign promise to “totally destroy” the federal regulations that prevent charities from using their resources for partisan political purposes.

“I will get rid of and totally destroy the Johnson Amendment,” he said, but he might as well have declared, “I will further compromise the public’s confidence in nonprofits.” Elimination of the Johnson Amendment would abrogate the unique and very powerful political influence of nonprofits as nonpartisan and disinterested entities.

“Free speech” is the rallying cry of those who support repealing a 60-year-old law enacted during the Eisenhower administration and making other needed changes to the tax code. On the campaign trail, Trump told his audience that the current situation “denies your pastors their right to free speech, and has had a huge negative impact on religion.

Opening the door to direct political action has been a key objective for religious leaders on the right. Family Research Council President Tony Perkins made the case in an op-ed published to the group’s website:

This ban is at odds with our own history. Since the birth of our nation, pastors and churches have been at the forefront of shaping public debate and our choice of public servants. For example, Martin Luther King Jr. was a clergyman, and the political involvement of African American churches was integral to progress in the civil rights movement he helped lead in the 1950s and 1960s.

None of that requires partisanship, of course, and, in fact, the Civil Rights Movement would doubtless have been compromised by its intrusion as a primary purpose.

Under current IRS rules, nonprofit organizations and their leaders are only “prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” Thus, free speech makes a good talking point, but the real objective for making these changes is to permit 501(c)(3) nonprofit organizations to raise funds for partisan political purposes and make political contributions both tax-exempt and more opaque.

Robert P. Jones, CEO of the Public Religion Research Institute said, in an interview with Salon, “Church members could give tax-deductible donations to a church, which would then be used by the church to campaign for a specific candidate. It could effectively turn churches into campaign offices and pastors into party operatives.” As the website explained, “a religious group could begin to release campaign ads, and church members could contribute to political candidates and write it off on their taxes.”

According to the Citizens United for Responsibility and Ethics, the change has the potential to further darken our political process.

Most of the dark money spending currently done by the non-charitable section 501(c) groups would almost certainly move to charities, as would at least some of the super PAC spending. The ability to deduct what would effectively be political contributions would be a massive incentive to contribute to charities that engage in politics, instead of to other section 501(c) entities. Even better, donors could still keep their contributions secret. Deductibility of contributions and secrecy similarly would motivate donors to switch from super PACs—and from candidates and political parties—to political charities.

Free speech with few limits is a very American perspective. Allowing nonprofit organizations to join more openly into the political conversation is not inherently controversial. But allowing them to become fundraising engines for candidates and parties would change the philanthropic landscape and ultimately make it harder for the nonprofit sector fulfill its core purposes, which includes campaigning for social change.

In an interview with the Forward, Daniel Kurtz, former head of the Charities Bureau at the Office of the New York State Attorney General and currently a partner at the law firm Pryor Cashman, described this challenge. “I think it will do nothing good. It’s been very good for the nonprofit world not to get embroiled in partisan politics. People are going to make decisions about supporting charities based on which side they’re on on which issue. I think it will be very destructive.”

Some nonprofit associations have been coming out in strong agreement. Tim Delaney, president of the National Council of Nonprofits, released the following statement last week:

“Nonpartisanship is vital to the work of charitable nonprofits. It enables organizations to address community challenges, and invites the problem-solving skills of all residents, without the distractions of party labels and the caustic partisanship that is bedeviling our country. Indeed, current law is the reason that charitable nonprofits are safe havens from politics, a place where people can come together to actually solve community problems rather than just posture and remain torn apart.

“Although all of these latest proposals are couched in terms relating to churches, in truth the underlying law is Section 501(c)(3) in the Tax Code, which relates to all charitable nonprofits and foundations. For more than six decades, the law now being attacked has protected charitable nonprofits and foundations from being pressured by politicians and paid political operatives to divert their time and resources away from advancing their missions in local communities. That law has a proven track record of working well to protect against politicization.

“Nonprofits are already free to exercise their First Amendment rights to advocate for their missions. Allowing political operatives to push for endorsements would put nonprofits in a position where they become known as Democratic charities or Republican charities and put missions at risk.

“Furthermore, those who donate to nonprofits want those contributions to go toward advancing the mission, not toward advancing the careers of politicians or lining the pockets of political consultants. Getting involved in supporting or opposing candidates will have a chilling effect on contributions on which many nonprofits rely.”

And the Minnesota Council of Nonprofits (MCN) called it a “bad idea.”

We believe the Johnson Amendment does not unfairly limit the speech of churches or nonprofits. Religious institutions and other nonprofit organizations who want to give up their public charity status are free to expend their funds for or against political candidates and partisan election activity and keep their tax exempt status as a (c)(4), or Section 527 organization.

MCN also urged the Minnesota congressional delegation to reject the proposed changes.

With this editorial, NPQ now adds its voice to those who resist any repeal of the Johnson Amendment, and we urge others to do the same. The nonprofit sector should assertively protect itself and the public from this baldly partisan effort.

  • I have no problem limiting nonprofit and even religious fund-raising for political purposes. I do have a very powerful objection to prohibiting pastors from speaking to political issues from the pulpit, however. I worked for 40 years in the nonprofit sector and I am here to tell you that nonprofits are NOT shy about promoting political candidates and making it clear to their constituency who they ought to vote for, especially if the leadership of the npo leans to the left. At the same time the Obama IRS was threatening churches with loss of their nonprofit status if the pastor mentioned any political issues to their congregations. The Democrat Mayor of Houston even went so far as to demand copies of the sermons preached in local churches for the purpose of discovering if any pastor had preached against one of her new laws which had conservatives up in arms. She made it clear to pastors that to criticize her policy was to lose the church’s nonprofit status and that the mayor’s office would file a complaint with the IRS.

    The Johnson Amendment is selectively enforced. Make it about fund-raising only, I’ll go with you, but when pastors are gagged, then that’s damned unAmerican. Churches are protected by the Bill of Rights. If they start losing nonprofit status, so should every charitable institution in the United States. Nonprofits do have a role in helping educate the electorate and our political leaders. So do churches. It’s an equal role. If you see the protection of churches free speech as “diminishing” the role of nonprofits in political discourse, then you’re establishing a kind of official “religion” in violation of the Constitution. Atheism or nonreligious belief stands as equal to religion in having a voice. No problem. But to repress the religion of faith in favor of a belief system that has no faith is establishing nonreligion as the religion of the land.

  • Just_The_Facts_Maam

    Certainly we have all grown accustomed to the rules of play around the 501c3 IRS code for the general non-profit landscape. Why churches have this same exemption is less clear. I can only guess that their inclusion is rooted in an historical epoch where membership by the electorate was fairly high and it made political sense to include them. I also assume the theoretical consideration was that religious institutions, including local churches, would create at least as much social value as the denominated loss of local property tax dollars and attendant federal, state and local income taxes. In my community a small group of individuals who were members of two churches that would be best described as promoting a socially liberal theology started a rotating winter shelter to house homeless people on their premises when conditions are harsh. After many years, the more conservative churches gradually came on board (out of shame?). I see the politics of that and the result is very good for the homeless and the entire community.

    Why then, should taxpayers who do not ‘believe’ or have a different set of beliefs be expected to subsidize churches with no way of determining how their subsidy is being used? I have no trouble supporting churches when they “give back” in some fashion that can be observed. Too many churches, especially the big mega-churches in this area, are more exclusive in how they interpret the same christian texts, apparently, operating more like private country clubs. I question why the tax exempt status does not require or at least invite some obvious measure of effectiveness in terms of program execution or measured value like that quantified by the website Charity Navigator for non-profits. If churches are going to be tax-exempt there are a whole host of field-levelling measures that should be equally applied. Otherwise, pay your property taxes and rely on the fact that your members and contributors actually believe and don’t require a tax subsidy to exist.

    Unions and churches are the only two institutions that represent working class and small business people in an organized way. Unions are being systematically destroyed and that will leave only churches as an institutional refuge for progressive politics. If Trump isn’t just throwing this against the wall to see if it sticks as a diversion and is serious, churches (especially the many liberal ones) will become bases of support for all the atheistic, liberal and left-liberal groups who do not get a tax-exemption for political activity. Speaking as one of those, I may have to join a church and will get religion post haste.