Tax-exempt nonprofits must be mum when it comes to choosing between candidates
Although this holiday season happens to coincide with one of the most divisive election seasons in recent history, congregational worshippers should not expect to hear their rabbis taking sides from the bimah.
That’s because of what is known as the “Johnson Amendment,” a tax rule introduced by Lyndon B. Johnson in 1954 when he was running for reelection to the U.S. Senate. The amendment prohibits certain tax-exempt organizations, including religious groups, churches and synagogues, from endorsing or opposing political candidates or parties, although they are permitted to advocate for a cause. If the rule is violated, the Internal Revenue Service can strip an organization of its tax-exempt status.
While a political candidate is permitted to speak at a house of worship without violating the rule, he or she cannot engage in campaign rhetoric. Likewise, a member of the clergy is permitted to endorse a candidate, but only in his capacity as an individual, and not in his role as a leader of a congregation.
Some religious groups and churches consider the Johnson Amendment to be an infringement on their freedom of speech. Republican presidential candidate Donald Trump has pledged to “get rid of” the Johnson Amendment, a stance which is supported by several other politicians, including Reps. Steve Scalise (R-La.) and Jody Hice (R-Ga.), who introduced a bill last month to rewrite the law in an effort to allow charities and churches to engage in political activity that does not cost money. Another bill introduced last month by Rep. Doug Lamborn (R-Colo.) proposed to repeal the Johnson Amendment as it applies to houses of worship and would remove the amendment’s enforcement provision.
“This is a big issue now in many of the Christian churches, especially evangelical churches,” said Penina Lieber, an attorney specializing in nonprofit tax law at Dinsmore & Shohl LLP, and a faculty member of the University of Pittsburgh School of Law. “And there is a group of evangelical pastors that is refusing to follow the directive.”
The movement to repeal the Johnson Amendment was propelled during the presidential campaign of George W. Bush, according to Lieber. Bush strategist Karl Rove “understood that the religious right carried a lot of clout,” Lieber noted, and he sought to use those pulpits to help the campaign.
But despite its longstanding place in the books, the Johnson Amendment, she explained, is rarely enforced by the IRS.
“There is a benign neutrality with respect to churches,” said Lieber. “Because of the separation of church and state, there is not too much pressure on churches by governments. They tend to look the other way.”
Although few in number, there have been cases where the IRS has gone after churches suspected of violating the Johnson Amendment. A notable example was the Church at Pierce Creek, in Binghamton, N.Y., which lost its tax-exempt status after running newspaper ads in 1992 urging people not to vote for Bill Clinton. The church sued to get its exemption back but lost in court.
Television preacher Pat Robertson’s Christian Broadcasting Network was stripped of its tax-exempt status retroactively for the years 1986 and 1987 because of its support for Robertson’s presidential bid. CBN was required to pay a penalty to the IRS, and to pledge to avoid future partisan campaign activities among other organizational changes in accordance with the tax law.
An example of IRS enforcement on the left concerns the pastor of the Allen African Methodist Episcopal Church in New York City, the Rev. Floyd Flake, who was asked to sign documents stating he would refrain from election campaigning after he endorsed presidential candidate Al Gore from the pulpit in 2000.
Although the IRS is not usually aggressive about pursuing these cases, it is important for the Johnson Amendment to remain on the books, said Rob Boston, director of communications for Americans United for Separation of Church and State, a nonprofit, nonpartisan organization that works to preserve church-state separation in American government and the courts.
Repealing the rule would “pose a threat to campaign finance law, which is already pretty weak in this country,” said Boston, speculating that a repeal of the law would provide an avenue for candidates to effectively launder funds to the their campaigns through churches.
Moreover, allowing nonprofits to engage in campaign activities “could fundamentally alter the mission of houses of worship,” Boston added. Because people look at houses of worship as a “refuge,” he said, to allow campaign activity there would threaten the very character of a church or synagogue.
“There is already preferential treatment for houses of worship,” Boston said, noting that it is easier for congregations to obtain 501(c)(3) status than it is for other nonprofit groups. But allowing them to jump into politics is “a bridge too far.”
Rabbi Seth Adelson, spiritual leader of Congregation Beth Shalom, is more than happy to comply with the requirements of the Johnson Amendment.
“I actually think it’s best for clergy to stay away from politics, particularly in a season as sensitive as this one,” Adelson said. “I think the sanctuary where we pray should be just that — a sanctuary, a respite from the features of life that make it complicated and crazy, and politics fit into that sphere.”
For Adelson, there is a bigger message than partisan politics to convey from the bimah.
“I’d rather not be distracted by politics when what I want is to teach Jews about Judaism,” he said. “Even if the Johnson Amendment were repealed, I would not use the pulpit to talk about politics. There are many more important things, more holy things that bring us together as Jews.”
Rabbi Aaron Bisno, senior rabbi at Rodef Shalom Congregation, said he is “completely comfortable with the prohibition.
“I think it makes a healthy separation between religion and politicking,” he said. “I feel it is a privilege to speak from the pulpit, and I would not want to abuse the privilege by putting my thumb on the scale by weighing in on how people should vote.”
Toby Tabachnick can be reached at email@example.com.