Don't listen to the complainers on the religious right. We need the Johnson Amendment

Donald Trump’s promise to “totally destroy” the Johnson Amendment, delivered at the National Prayer Breakfast on Thursday, is a colossally bad idea, one that compromises the 1st Amendment.

The Johnson Amendment, passed by Congress in 1954 and named for Lyndon Johnson, then a U.S. senator, is a provision in the tax code that prohibits tax-exempt organizations from openly supporting political candidates. In the words of the tax code, “all section 501(c)(3) organizations are absolutely 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.”

I have no doubt that Johnson, consummate politician that he was, had his own reasons for pushing the legislation in 1954; he was running for reelection and didn’t want adversarial groups working against him under cover of tax-exempt organizations. But those motives should in no way diminish the wisdom of the measure.

Leaders of the religious right in recent years, however, have been pushing for a repeal of the Johnson Amendment. They argue that pastors should be able to make political endorsements from the pulpit without jeopardizing their churches’ tax exemptions. The fact that they cannot now do so, they argue, represents an infringement on their religious freedom.

That’s utter nonsense. The Johnson Amendment merely assures that taxpayers do not subsidize partisan politicking. It also ensures that tax-exempt organizations do not serve as the conduit for tax-exempt contributions to political candidates.

All of this kvetching from the religious right is an attempt to confuse voters with sleight of hand. By complaining about the supposed limitations on their freedom of speech, these leaders of the religious right fail to acknowledge that tax exemption is a form of public subsidy.

The vast majority of the nation’s religious organizations —  churches, temples, mosques, synagogues —  pay no taxes (other than Social Security taxes on wages), no income or corporate tax and no property taxes.

We can have a vigorous conversation about whether or not such an exemption is a good thing. (I think, on balance, it is; the founders recognized the value of voluntary associations and sought to encourage them.) But that discussion aside, the bottom line is that taxpayers in any given community effectively subsidize religious groups by paying extra taxes to support municipal services such as police protection, firefighters, parks, snow removal, road maintenance and the like.

These institutions certainly benefit from those services. If a fire breaks out, for example, the fire department responds – even though these religious organizations pay no property taxes to support that service. Local taxpayers pay instead, taking up the slack for the tax exemption on property that would otherwise be valued very highly.

To state it plainly, tax exemption is a form of public subsidy. All the Johnson Amendment requires is that, in exchange for that subsidy, the beneficiaries refrain from partisan politicking.

Various entities, including the Alliance Defending Freedom, have nevertheless urged pastors to defy the law and endorse political candidates. Jay Sekulow, chief counsel for the American Center for Law and Justice, asserts that the Johnson Amendment “prevents religious leaders from truly exercising their constitutionally-protected free speech rights when they act in their official capacity as a pastor or head of a religious, tax-exempt organization.”

More nonsense. Pastors, churches or any other entity can make political endorsements from the pulpit or in any other forum. They need only to renounce their tax exemptions —  their public subsidies — and they are free to be as partisan as they wish.

But there is another reason why the Johnson Amendment is a good idea and should not be repealed. Religion has flourished in the United States as nowhere else in the world precisely because the government has (for the most part, at least) stayed out of the religion business, and vice versa.

Despite the religious right’s persistent attempts to circumvent it, the 1st Amendment is the best friend that religion ever had. It ensures that there is no established church, no state religion, and that religious groups can compete for adherents on an equal footing. Evangelicals, by the way, have historically fared very well in that free marketplace.

The Johnson Amendment both derives from, and builds upon, the 1st Amendment. It reinforces the wall of separation between church and state that was advocated by Roger Williams, founder of the Baptist tradition in America. We should also remember that Williams wanted a “wall of separation” between the “garden of the church” and the “wilderness of the world” because he feared that the integrity of the faith would be compromised by too much entanglement with politics.

That’s a lesson worth recalling today.

Vice President Mike Pence and his wife Karen pray during the National Prayer Breakfast on Feb 2 in Washington, where President Trump promised to “totally destroy” the Johnson Amendment. (Evan Vucci / Associated Press)

Trump said he’ll ‘totally destroy’ the Johnson Amendment. What is it and why should people care?

In his address at the National Prayer Breakfast this morning, President Trump made one clear policy declaration: “I will get rid of and totally destroy the Johnson Amendment.”

What is that? Is it in Trump’s power to destroy it? And who would want him to do that?

What the Johnson Amendment is: It’s named for Lyndon B. Johnson, who introduced it in the Senate in 1954, nine years before he became president. It bans all tax-exempt nonprofits — which includes churches and other houses of worship, as well as charities — from “directly or indirectly” participating in any political candidate’s campaign.

What Trump has against it: Trump presents this ban on participating in politicking as a restriction on the freedom of faith groups to put their religion in action, if their religion calls on them to campaign for a candidate. At Thursday’s prayer breakfast, Trump said that his reason for opposing the Johnson Amendment is that it impinges on the American “right to worship according to our own beliefs” — apparently describing campaign participation as a form of worship.

This is Trump’s first time bringing up the subject as president, but it’s a vow he has made several times before.

Speaking to a group of hundreds of conservative Christian faith leaders who met with him in June, Trump made his opposition to the Johnson amendment a key point of his well-received speech. “I think maybe that will be my greatest contribution to Christianity — and other religions — is to allow you, when you talk religious liberty, to go and speak openly, and if you like somebody or want somebody to represent you, you should have the right to do it,” he said. “You don’t have any religious freedom, if you think about it.”

He included it in his acceptance speech when he won the Republican presidential nomination as well, after he thanked evangelical Christians. “They have so much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits. An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views,” Trump said.

How it actually works: Most of the discussion of the Johnson Amendment, whether coming from Trump or from pastors, focuses on whether clergy put their churches’ tax-exempt status at risk when they endorse their favorite candidates from the pulpit.

But in reality, the Internal Revenue Service very rarely punishes churches for political statements. For several years, more than 2,000 pastors have joined what they call “Pulpit Freedom Sunday” to test the ban by speaking their political views in their sermons — and the IRS has only investigated once and did not punish in that case, according to the conservative organization that organizes the annual effort.

What Trump hasn’t talked as much about is the implication for how churches can spend their money, not just how clergy can talk about candidates.

“Most people’s concern is if you allow churches to freely allow political activity — churches, synagogues, temples, whatever the religious organization — now what you’ve done is you’ve turned those into Super PACs,” said David Herzig, a Valparaiso University tax law professor.

Churches would be freed to use their budgets to support campaigning — and citizens would get a tax deduction for contributing to the church, which would still be a 501(c)3 nonprofit. Also, Herzig pointed out, nonprofits like churches aren’t required to make the same public disclosures as PACs, so political funding could theoretically become much less transparent if campaign funding were funneled through churches.

How to get rid of it: The Johnson amendment is part of the tax code, so to remove it would take an act of Congress.

But President Trump can direct the IRS not to enforce that portion of the law, Herzig said. “Yes, technically, the only way to get rid of the Johnson Amendment is to have Congress repeal that portion of 501(c)3. It doesn’t mean the executive branch doesn’t have tremendous power in the ability to decide whether they’re going to enforce the Johnson amendment.”

That would mean the next president could direct the IRS to enforce it, but churches would be free from worry about their political speech or donations during Trump’s term.

Who wants it gone: Until Trump’s campaign, the Johnson Amendment rarely came up in political discussion. Some pastors, including those 2,000 who publicly oppose the policy on Pulpit Freedom Sunday, objected to the ban, but it wasn’t high on most Christians’ policy wish list.

Lifeway, a Christian polling firm, found in 2015 that 79 percent of Americans thought clergy should not endorse candidates during worship services. Evangelicals were more likely to say pastors should be able to do so — 25 percent compared to 16 percent — but support for clergy endorsements was low across the board.

Trump’s attack on the Johnson Amendment has found eager supporters, though, including Jerry Falwell Jr. and other prominent evangelicals who supported his presidential campaign.

On the other hand, many religious groups like their nonpolitical status just fine the way it is. After Trump spoke Thursday morning, for instance, the Baptist Joint Committee for Religious Liberty quickly put out a statement saying repealing the Johnson Amendment would not further the religious liberty that they stand for.

“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,” the organization said.

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