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Supreme Court of the United States

Why the Johnson Amendment Needs a Legislative Fix, Not an Executive Order

By Natalie Allen posted on:
October 17, 2017

At the beginning of the month, President Trump signed a much-anticipated executive order on religious liberty and free speech. The executive order expressed strong support for the freedom of every American to live and work consistently with their faith without fearing government discrimination or retaliation.

But there’s also been a lot of misinformation circulating regarding the practical effects of the executive order—particularly its practical effects on the Johnson Amendment.

The Johnson Amendment is a speech restriction in the tax code that prohibits all nonprofits—including churches—from participating or intervening in elections. Alliance Defending Freedom has long advocated for a fix to the Johnson Amendment, because of its unconstitutional restrictions on a pastor’s speech.

Here’s what you need to know.


The IRS is notorious for abusing discretion


The executive order directs the U.S. Treasury “to the greatest extent practicable and to the extent permitted by law” to respect the freedom of organizations to engage in religious and political speech.

The problem is, history shows that the IRS can’t be trusted.

The IRS is one of the largest and most unaccountable bureaucracies in the federal government. It is also one of the most scandal-laden. The IRS has been caught targeting conservative groups and harassing churches. We can’t trust the IRS with emails, much less with properly respecting First Amendment freedoms of religion and speech.

As recently as 2014, the IRS told one atheist group that it had a list of 99 churches that merited high-priority investigation. And IRS investigations can mean audits, harassment, and even visits from other government agencies like the FBI.

The fact is, the IRS cannot be trusted with ensuring that pastors’ and churches’ freedom of speech is protected. Congressional action is necessary to remedy the unconstitutional restrictions on speech created by the Johnson Amendment.


A legislative problem requires legislative action


An executive order cannot repeal legislation, and President’s Trump’s executive order did not change the Johnson Amendment. Some pastors have assumed that the 1954 Johnson Amendment is impotent, but this is not the case. Its vague and confusing language gives the IRS too much deference to interpret the code and too much power to enforce it, leaving pastors vulnerable to IRS harassment. The executive order did nothing to practically change this language.

Theoretically, the federal agency charged with interpreting and applying this law should have enacted clarifying regulations, but the IRS has only added to the confusion over time. The IRS refuses to produce well-defined guidelines regarding the Johnson Amendment, so it is up to Congress to produce the solution that protects the constitutional rights of churches across the nation.

By clarifying that statements made “in the ordinary course of the organization’s regular and customary activities” cannot be classified as participation in elections, the Free Speech Fairness Act frees churches and pastors from the fear of IRS retribution for making statements about politics from the pulpit according to sincerely-held religious beliefs.

Congress enacted this legislation, and therefore Congress should be the one to remedy the issue it inadvertently created in 1954.


Constitutional rights shouldn’t depend on who’s in the White House


Executive orders come and go. President Trump repealed executive orders signed by President Obama. President Obama repealed executive orders signed by President Bush. The list goes on.

While executive orders have a role to play, they do not establish long-term policy.

The executive order expressed support for the constitutional rights of pastors, but it cannot effectively repeal the legislation. And as no court has taken on addressing the constitutional problems present in the Johnson Amendment, this leaves the task of protecting churches’ freedom of speech to Congress.

The Johnson Amendment’s vague and confusing language violates the Fourteenth Amendment’s requirement that citizens be informed with a reasonable degree of certainty of what the law requires so that they can conform their conduct accordingly. This lack of specific guidance from the IRS results in pervasive chill and massive self-censorship among America’s church leaders.

The constitutional rights of pastors should not be conditional on who occupies the White House; rather, Congress needs to take on the task of setting up permanent protections of free speech for our nation’s churches.


Congress must fix the Johnson Amendment


While President Trump’s executive order was a good step in acknowledging that churches need relief from the Johnson Amendment’s restrictions, practical legislative action is still essential. The Free Speech Fairness Act would effectively get the IRS out of the free speech police business and would prohibit the IRS from regulating the content of sermons in any way.

The decision about whether a particular church or pastor talks about candidates from the pulpit should reside with that church and with that pastor. The Free Speech Fairness Act would allow churches to speak as they would in the ordinary course of their ministries without fear of IRS retribution, and it is therefore the best solution to the Johnson Amendment’s constitutional problems.


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Natalie Allen

Natalie Allen

Legislative Communications & Initiatives Coordinator

Natalie worked as a lobbyist at the Family Foundation of Virginia and a grassroots associate at Heritage Action for America before joining the Alliance Defending Freedom team.

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