Why This Matters to All of Us
The fate of the rider to the spending bill could be decided in the next few days, but to understand why it matters, first we must consider the current law that benefits us all. For 63 years, an important provision in the federal tax code has successfully protected charitable nonprofits, religious congregations, and foundations from being polarized by raw politics and hounded by politicians and paid political consultants seeking endorsements, financial contributions, and more.
The provision is Section 501(c)(3)’s third condition for eligibility to receive tax-deductible donations and tax-exempt status: a charitable nonprofit, religious organization, or foundation may “not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” The provision is sometimes called the Johnson Amendment, after then-Minority Leader Lyndon Johnson, who proposed the amendment in 1954. The Republican-controlled Senate adopted it without controversy and President Ronald Reagan signed an expansion of the protection in 1987. While much of the focus of this debate has been on religious institutions, this issue affects every 501(c)(3) organization.
Despite longstanding bipartisan support and important proven benefits (see What’s at Stake, below), politically motivated forces are agitating to repeal or weaken the Johnson Amendment. They seek to politicize charitable nonprofits, houses of worship, and foundations. In February, President Trump vowed to “totally destroy” the law. One bill in Congress, H.R. 172, would repeal the protection and thereby open the floodgates for undisclosed and unregulated dark money to flow into partisan election campaigns—all with the bonus of a charitable deduction for the donor. Two identical House/Senate bills, H.R. 781/ S.264, would substantially weaken the law and spawn litigation; those measures are promoted by 47 very conservative groups, including religious broadcasters that could profit from an influx of taxpayer-supported “charitable” donations explicitly or implicitly earmarked for political endorsements. (Compare that 47 against the more than 4,800 nonprofits and foundations [so far], more than 3,000 religious leaders so far, and 99 religious and denominational organizations urging Congress to maintain the current law.)
Last week, yet another measure appeared when the House Appropriations Subcommittee on Financial Services “tucked a provision into its draft spending bill that would make it exponentially more difficult for the Internal Revenue Service to enforce” (according to Newsweek) even the most blatant violations of the Johnson Amendment. The rider (Section 116) would prevent the IRS from spending any funds to make a final determination that a house of worship or its affiliate has violated the Johnson Amendment unless the IRS meets three conditions:
- The IRS Commissioner personally approves the determination. (But how can the initial investigation even begin in order to reach a final determination if no funds can be used?
- The Commissioner notifies politicians at the House and Senate tax committees within 30 days of the law-enforcement determination. (That’s sheer intimidation and likely violates separation of powers.)
- Actual enforcement cannot occur for 90 more days. (That gives Congress time to change the law, despite the constitutional prohibition against ex post facto laws.)
As reported by the Washington Post, the rider “is clearly an effort to gut the Johnson Amendment as applied to churches.”
How to Protect Ourselves and the Sector
Stripping a rider off a “must-pass” spending bill is not easy. Charitable and religious organizations must work in unison to prevail.
We’ve identified these three easy steps to take by Tuesday, July 11:
- Contact your Representatives on the House Appropriations Committee and urge them to strip the Johnson Amendment rider (Section 116) from the Financial Services and General Government appropriations bill; you can find your Representative’s contact information and call or email right away.
- If you work for or are a member of a national nonprofit organization, make sure your organization signs onto the new Letter Opposing Weakening the Johnson Amendment in the FSGG Appropriations Bill.
- Forward this article to friends at three other organizations by email or tweets and urge them to join you in contacting Representatives on the House Appropriations Committee and encouraging national nonprofits to sign the Letter Opposing Weakening the Johnson Amendment. Tweet with hashtags #JohnsonAmendment and/or #CommunityNotCandidates.
What’s at Stake
Nonprofit, religious, and foundation leaders across the country support the current law because they recognize that politicizing the sector will hurt their ability to deliver on their missions. Consider this sampling of ways that the Johnson Amendment has protected us all for six decades:
- We don’t have donors questioning if we are siphoning off their charitable contributions to give to political candidates—because we can’t. If we could, trust would be broken and donations would go down for all nonprofits.
- We don’t see the division and duplication of the “First Republican Baptist Church” across the street from the “First Democratic Baptist Church.”
- We don’t have churches, synagogues, mosques, or temples using tithes and offerings to broadcast endorsements for candidates or political parties over their radio and television programs.
- We’ve had a reliable refuge to escape toxic partisanship, as 501(c)(3) organizations operate as safe places where people can come together to actually solve community problems rather than just posture and remain torn apart.
- We don’t have our boardrooms divided by one board member saying, “We should endorse Sally,” while the board chair declares, “No, we should endorse Jack.”
- We live in a world in which our foundation partners don’t endorse political candidates and send not-so-subtle hints that its nonprofit grantees and potential grantees can prove their worth by endorsing the same candidates.
- Human service providers with government contracts can’t be squeezed with the suggestion they could lose their contract unless they endorse the incumbent. Foundations can’t be told that candidates running for local office might want to tax foundation assets unless endorsements or contributions are made. University presidents can’t be told by candidates for Governor, Congress, or the Presidency—or influential alumni—that the stadium needs to be provided free of charge for a candidate rally—meaning eating the costs for security, planning, clean-up, and more.
- People looking to nonprofits for needed services don’t need to think twice about the potential affiliation of an organization with a particular candidate. Potential volunteers, employees, or donors don’t have to think about the fact that the organization supports Candidate A in a primary or Candidate B in a general election. They can all remain focused on the mission of the organization.
- 501(c)(3) organizations can say “no” to demands for political endorsements and campaign contributions because requests by politicians and their operatives for endorsements and contributions amount to asking the charities, houses of worship, and foundations to break the law. But were Congress to weaken the Johnson Amendment, charitable organizations and religious institutions would be harassed by financial inducements or undue pressure from politicians, operatives, board members, and donors who demand political endorsements.
All those benefits—and more—could vanish if you sit on the sidelines and let Congress tamper with the protections in the Johnson Amendment.
The House Appropriations Committee could consider the underlying bill as early as next week, so please take the actions suggested above by close of business on Tuesday, July 11.
There is much more that needs to be done before the law protecting nonpartisanship is safe from partisan challenges. For more information about nonprofit nonpartisanship, go to www.GiveVoice.org.