The U. S. moves toward theocracy: Congress aims to repeal the Johnson Amendment barring nonprofits (like churches) from endorsing candidates

The Johnson Amendment, in effect since 1954, is in fact named after Lyndon Johnson, who introduced it as a congressman. It’s part of the U.S. Tax Code, and specifies behavior prohibited for 501(c)(3) non-profit organizations (the amendment itself is the part in bold below):

26 U.S. Tax Code §501 Section C

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does 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.

These organizations, the most important of which are churches, are thus prohibited from siding with one candidate or party, or criticizing others. They are, however, allowed to engage in nonpartisan activities like voter-registration drives.

There are two reasons why this amendment is necessary in a secular country. First, churches are already subsidized by taxpayers with respect to property taxes, other taxes, and ministerial housing allowances, and if churches became partisan it would be partly at the taxpayers’ expense. Further, if you made a political donation to a church that endorsed a candidate or party, that donation would be tax-deductible (unlike other political contributions) and also by law would not be “disclosable” like other donations are. This would produce an invidious inconsistency in how political donations are made. Polls have shown that the public, most clergy, and nonprofit umbrella organizations favor this amendment and frown on churches being able to endorse candidates.

Trump has been against this amendment since he began running as a candidate; as Wikipedia notes:

During his 2016 presidential campaign, Donald Trump called for the repeal of the amendment. On February 2, 2017, President Trump vowed at the National Prayer Breakfast to “totally destroy” the Johnson Amendment,  White House Press Secretary Sean Spicer announced to the press that the President “committed to get rid of the Johnson Amendment”, “allowing our representatives of faith to speak freely and without retribution”, and Republican lawmakers introduced legislation that would allow all 501(c)(3) organizations to support political candidates, as long as any associated spending was minimal.

On May 4, 2017, Trump signed the “Presidential Executive Order Promoting Free Speech and Religious Liberty.” The executive order does not (nor can it) repeal the Johnson Amendment, nor does it allow preachers to endorse from the pulpit, but it does direct the Department of Treasury that “churches should not be found guilty of implied endorsements where secular organizations would not be.” Douglas Laycock, speaking to The Washington Post, indicated that he was not aware of any cases where such implied endorsements have caused problems in the past.

As the Washington Post reports, Congress is trying to do an end run around the tax code by gutting the government’s ability to investigate transgressions of this amendment:

Many pastors already ignore the so-called Johnson Amendment, and the IRS rarely investigates churches that violate a law that many clergy feel provides a chilling effect on their free speech. But some observers fear the language proposed in a new spending bill released this week would make it difficult for the IRS to investigate any claims of pulpit politicking or money flowing between houses of worship and political campaigns.

During his campaign for the presidency, Donald Trump targeted the Johnson Amendment as a big part of his pitch to religious conservatives, but because the amendment is law, repealing it would take an act of Congress.

Instead of trying to repeal the amendment, legislators appear to be targeting it through a spending bill that says the IRS can’t use funds to investigate a church for breach of the Johnson Amendment without the sign-off of the IRS commissioner, who must report to Congress on the investigation.

Why is this happening? Because, of course, it’s Trump and the Republicans catering to their conservative Christian base—a base that wants churches to endorse conservative candidates (those who are, for instance, anti-gay and anti-abortion). The Post also points out that if churches were allowed to engage in political endorsements, politicians could pressure churches by various means to direct their endorsements in a particular direction.

I’ll follow this measure over time to see if it passes. If it does, it’s just another breach in the real wall the U.S. needs: the one between church and state. It may not get the attention of the Great Mexican Wall, or  of the dismantling of Obamacare, but it’s part of the metastasizing theocracy that is part of Trump’s plan—though he’s probably an atheist—to appeal to his supporters.

h/t: Heather Hastie

52 Comments

  1. Posted July 7, 2017 at 1:09 pm | Permalink

    Isn’t the more basic problem here that churches get tax exemptions?

    Surely giving tax breaks to an institution just because it is religious is a violation of the Establishment Clause?

    (Yes, I do realise that the chances of getting that changed are zero.)

    • tomh
      Posted July 7, 2017 at 1:21 pm | Permalink

      Well, it has been upheld in the Supreme Court. The Freedom From Religion Foundation has a brief, informative discussion on “Tax exemption of churches — Is it constitutional?”

      • Posted July 7, 2017 at 1:46 pm | Permalink

        Quoting from the Walz ruling in that link:

        “New York … has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by property taxation …”

        That right there, the state deciding that religion fosters moral or mental improvement, is a violation of the Establishment Clause (e.g. prong 2 of the Lemon Test for starters).

        “The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life …”

        Ditto.

        No chance of the current SCotUS ruling that way of course, but they should.

        • Diane G.
          Posted July 8, 2017 at 4:27 am | Permalink

          “New York … has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by property taxation …”

          This would be more believable if it applied to any “entities” other than churches. IMO, for instance, FFRF fosters “moral or mental improvement;” also Planned Parenthood, schools, non-religious soup kitchens and the like, etc. Maybe we should just tax entities that are unharmonious and foster depravity.

      • JohnE
        Posted July 7, 2017 at 2:00 pm | Permalink

        Ahh, but there is a difference. As is noted in the FFRF discussion, the Supreme Court ruled that “the tax exempt status granted to all houses of worship is the same privilege given to other nonprofit organizations.” The problem the repeal of the Johnson Amendment creates is the suggestion that churches can engage in political activities, even though the Internal Revenue Code prohibits all other non-profit organizations from engaging in those activities (See: https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501-c-3-tax-exempt-organizations). THAT’S where the equal protection violation will arise.

        At present, contributions to political campaigns are not tax deductible. If the Johnson Amendment is repealed (and if the Supreme Court rejects the equal protection challenge by other not-for-profits), people will be able to make virtually unlimited tax-deductible contributions to churches, which the churches will then be free to use for political purposes. In fact, as John Oliver demonstrated on his show some months ago, since ANYONE can start his own tax-exempt church at any time, it is an absolute certainty that some will start churches for the express purpose of creating a mechanism to facilitate unlimited tax deductible political contributions. Heck, I wouldn’t be surprised in the least if the GOP simply reorganized as a church to take advantage of this, and to cement their connection with their evangelical supporters. Why not?

  2. Mark R.
    Posted July 7, 2017 at 1:10 pm | Permalink

    I’m sure it will pass. I’m also fairly sure SCOTUS will make abortion illegal as well as marriage equality. Republicans are trying their damnedest to make America uncivilized and a horrible place to live.

    • Historian
      Posted July 7, 2017 at 1:38 pm | Permalink

      How far to the right the Supreme Court will go will depend on whether Justice Kennedy or any of the four liberal justices leave the Court when the Republicans control the presidency and the Senate, as is currently the case. Neil Gorsuch, appointed by Trump, has already proven that he is a far right-winger (no real surprise) as documented by Linda Greenhouse, a Supreme Court observer that I deeply respect. All in all, it is likely that the Supreme Court will be a hard right bastion for decades to come, in all areas of economic, social, and religious activity. This is why I have continually harped on my view that the far right represents a much greater threat than the regressive left to enlightenment values and the welfare of all citizens.

      • Posted July 7, 2017 at 2:20 pm | Permalink

        Interesting article by Ms Greenhouse and if the thin evidence she points to turns out to be true we are all in deep doo-doo. I have to say her piece seemed much like an analysis of how many angels can dance on a pin.

      • Heather Hastie
        Posted July 7, 2017 at 9:31 pm | Permalink

        I think you are right Historian. The big difference between the regressive left and the far right is that the far right has power and the ability to change laws. All the far left can really do is make a lot of noise.

    • Ken Kukec
      Posted July 7, 2017 at 2:02 pm | Permalink

      Rumor has it, Justice Anthony Kennedy may retire next year. (He’s apparently advised next year’s crop of law clerk applicants of that possibility.) Should that happen, we’re off to the races on abortion and a host of other issues.

    • DrBrydon
      Posted July 7, 2017 at 2:15 pm | Permalink

      Cout me as dubious. I don’t think the court would turn back the clock and create turmoil by overturning Roe v Wade after forty years. Although less settled, I think the same is true for marriage equality. At the worst they might throw them back to the states, but I think that is unlikely on abortion.

      • DrBrydon
        Posted July 7, 2017 at 2:16 pm | Permalink

        Gah. “Count”

        • Colin McLachlan
          Posted July 8, 2017 at 5:19 am | Permalink

          Better than missing out the “o” 🙂

    • BJ
      Posted July 7, 2017 at 2:54 pm | Permalink

      “Wearing a hijab doesn’t make you a hero, but the Cntrl-Left sees the garment as a sign of her moral value, because it means she’s oppressed (she’s not).”

      Just because the Court has become more conservative doesn’t mean it’s going to repeal everything progressives like. Roe v. Wade is over 40 years old, and there have been many decisions from SCOTUS since affirming it (decisions far better than and harder to poke holes in than Roe, which was actually wasn’t well-written from a legal standpoint). With regard to gay marriage, that issue is far less divisive among the populace than abortion — even a majority of conservatives supports gay marriage. Moreover, the decision allowing for gay marriage is pretty solid.

      This is doom and gloom. There are no indications that the Court will repeal these rights.

      • BJ
        Posted July 7, 2017 at 5:23 pm | Permalink

        Sorry, I must have quoted and copy/pasted the wrong thing.

        Ah, I must have not pressed Ctrl-C properly, and I pasted something I quoted in a post on the Sarsour thread. I’m a real dumbass sometimes 😛

        • Diane G.
          Posted July 8, 2017 at 4:37 am | Permalink

          I’ve done the same thing–my guess is that you’ll proofread your comments more carefully for a while until this instance fades in your mind, at which point you’ll do it again. 😀

          But I don’t at all share your confidence in SCOTUS.

  3. busterggi
    Posted July 7, 2017 at 1:24 pm | Permalink

    According to the bible, Jesus was in favor of taxes being paid so Christians just have to be the opposite to show they have free will.

    • Doug
      Posted July 7, 2017 at 10:26 pm | Permalink

      “Whose portrait is on this dollar bill?”
      “Washington.”
      “Then render unto Washington the things that are Washington’s.”

      • Posted July 10, 2017 at 11:32 am | Permalink

        The problem with *that* argument has always been the debate over *what* is Caesar’s. After all, a lot of these people are “tax freedom” folks and that sort of thing.

  4. DrBrydon
    Posted July 7, 2017 at 1:25 pm | Permalink

    Just wait ’til some Imam endorses a political candidate. Neither party seems to realize that these things cut both ways. I agree with Coel, tax churches, and let them deduct anything they can prove is actually charitable that they pay for.

  5. Randy schenck
    Posted July 7, 2017 at 1:47 pm | Permalink

    I noticed the statement, If churches became partisan. I think in this country we are way past IF. Trump is doing this and in favor of this because of Pence. This is all from Pence, because Trump, on his own, would not care one way or the other on this thing. It does not keep him up nights doing his twitter thing. It is not about Trump so why would he give two cents for such a thing? It is all for the lap dogs.

  6. Ken Kukec
    Posted July 7, 2017 at 1:54 pm | Permalink

    Trump an atheist? The guy who knows “two Corinthians”? Who goes to church for his “little wine and crackers”? Whose second favorite book (after The Art of the Deal) is the bible? He sure got all god-dy in front of a crowd of specially bused-in Poles yesterday. You’re not suggesting he’s less than forthright and sincere, are you?

    Trump an atheist? Heaven forfend!

    • DrBrydon
      Posted July 7, 2017 at 2:21 pm | Permalink

      I don’t think Trump believes consistently in anything except Trump. That’s one reason I wouldn’t vote for him: Who knows what the hell his convictions are? Perhaps as time goes on, there will be some more public convictions.

      • Ken Kukec
        Posted July 7, 2017 at 2:56 pm | Permalink

        God and Trump have a mutual non-aggression agreement — like the Molotov-Ribbentrop pact Hitler & Stalin signed in 1939.

        • busterggi
          Posted July 7, 2017 at 3:09 pm | Permalink

          Wait until God invades Ivanka….

          • Ken Kukec
            Posted July 7, 2017 at 3:17 pm | Permalink

            Maybe the Good Lord will undertake Operation Omarosa.

      • Posted July 8, 2017 at 11:03 am | Permalink

        Oh, *rump is a theist, definitely. It’s just that the god he believes in, to most other people, is just a man, or barely even that.

        • Posted July 10, 2017 at 11:34 am | Permalink

          He might well be a theist in the same way the Kims in charge of NK are (just with a slightly different deity in mind).

    • Kevin
      Posted July 7, 2017 at 2:25 pm | Permalink

      The only thing orange raccoon has prayed for is to flop his tiny noodle around underaged supermodels.

    • busterggi
      Posted July 7, 2017 at 2:34 pm | Permalink

      Course Trump ain’t an atheist – he believes in himslef.

  7. Posted July 7, 2017 at 2:03 pm | Permalink

    Isn’t this just an acknowledgement of what already happens in most churches? New news would be that the administration intends to enforce current law.

  8. Dave137
    Posted July 7, 2017 at 2:06 pm | Permalink

    Correspondingly, at the very least, all churches, synagogues, mosques, etc. should pay that percentage of property taxes which goes toward local fire-departments and police.

    When churches catch fire or face theft of some sort, they use public services. And being a part of a community, they should pay like the rest of us for potentially using those services.

  9. C. Morano
    Posted July 7, 2017 at 2:23 pm | Permalink

    This is not theocratic. Let them say whatever they want. They should be free to do what they want barring physical force AND they should be taxed! Tax the hell out of the churches! That would start the end of organized religion faster than anything. I question the power of a church to influence its members. No more than a labor union.

    • Kevin
      Posted July 7, 2017 at 2:35 pm | Permalink

      Agree. Taxing good, but let them say what they want.

      I am not sure how a church’s endorsement is useful, particularly for the church.

      Parishioners are unlikely to be told they should pray for the local collegiate sports team. Not everyone is a fan.

      Unless a vast majority of the church already endorses a candidate, the pastor is taking a risk of losing members. And people who already have a theocratic candidate in mind are not going to be convinced by a babbling minister.

      • Diane G.
        Posted July 8, 2017 at 4:43 am | Permalink

        Roman Catholics are told they’re going to hell if they vote for the party that supports abortion rights.

  10. Tom
    Posted July 7, 2017 at 2:24 pm | Permalink

    Did the Johnson Act clear the way for John Kennedy to run for the Presidency?
    Since he was the first catholic thought likely to win and that as a catholic he might be unduly influenced by that church this act would have been a timely way to distance religion from politics.
    Johnson was well known as a political fixer

    • Ken Kukec
      Posted July 7, 2017 at 3:14 pm | Permalink

      JFK was a freshman senator from Massachusetts in ’54 so I doubt that came into play.

      The only Catholic major-party presidential nominee before him was Al Smith. Although Smith’s Catholicism probably cost him the 1928 election, I don’t think endorsements from the pulpit were a particular problem. (When JFK ran, his supposed “pipeline to the Vatican” was still an issue, until Jack made the haj to Houston to chill out the Protestant preachers.)

      The only RCC member to run for the presidency since was another MA senator with the initials JFK.

  11. ashdeville
    Posted July 7, 2017 at 2:31 pm | Permalink

    Face it- Handmaid’s Tale is now just a matterof time

    • Posted July 8, 2017 at 11:33 pm | Permalink

      Soon as I saw the movie, I knew it was already a transition in progress. I still plan to read the book, hope to see the series, and wish to be wrong about America’s future becoming a misogynist’s dream theocracy…

  12. BJ
    Posted July 7, 2017 at 2:54 pm | Permalink

    Jesus freaking Christ. This has some seriously far-reaching implications, and none of them good.

  13. Posted July 7, 2017 at 3:16 pm | Permalink

    Want to see what happens to people in a country whose laws are underpinned by religious dictates? How about a teenager afraid to report the rapes that got her pregnant sentenced to 30 years in prison after giving birth to a (likely) stillborn baby.

    http://www.bbc.com/news/world-latin-america-40530711

    I don’t believe the U.S. is headed all that way but if this doesn’t scare the bejesu….er….Flying Spaghetti Monster out of you, nothing will.

  14. rickflick
    Posted July 7, 2017 at 5:05 pm | Permalink

    This is disgusting. I can imagine in 20 or 30 years some clever politician reinstituting the ban and slowly dismantling the theocracy that the US will have become. Hell, I won’t live to see the day. 😦

  15. Peter
    Posted July 7, 2017 at 6:44 pm | Permalink

    This article criticises potential abortion restrictions. Respectfully, why is killing a defenceless fetus OK, but killing a defenceless albatross not OK?

  16. mfdempsey1946
    Posted July 7, 2017 at 6:58 pm | Permalink

    Does the United States of America have any meaningful existence anymore in terms of its original contributions to human governance and ideals, however imperfectly it has lived up to this legacy?

    Or does it have merely the existence of large but backward quasi-banana republic that happens to possess a still powerful economy, plus the military ability to destroy all human life a hundred times over?

    In other words, is the USA as it was meant to be by some of the founders basically a thing of the past, however long this or that entity manages to stagger onward under that name?

    It is the atrocious behavior of the Trump creature, today’s version of the Republican Party, and their minions that prompts such questions — for the first time in US history.

    • Posted July 10, 2017 at 11:36 am | Permalink

      As a non-American I’ve often said I admire the First Amendment, which is well worth preserving – and improving.

  17. jeffery
    Posted July 8, 2017 at 12:16 am | Permalink

    Trump’s not an atheist; he worships Donald Trump!

  18. Posted July 8, 2017 at 11:29 pm | Permalink

    Please, please, if there be a God, let this be exactly the sort of bait and switch Dominionists and other evangelicals use: Please, God, let this removal of the Johnson amendment precede a very quick IRS law that bars any and all religious institutions from avoiding their fair share of taxes! Then, everything (related) will be okay, again, including the U.S. deficit.


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