Current Events and Philanthropy / Philanthropy and the State

“We will ‘Totally Destroy’ the Johnson Amendment”

Editors’ Note: During a speech at the 64th annual National Prayer Breakfast in Washington last week, Donald Trump reaffirmed his campaign promise to “get rid of and totally destroy the Johnson Amendment.” Here, Winnifred Fallers Sullivan offers a history of the amendment and some analysis on its likely future.

President Trump announced at the National Prayer Breakfast on Thursday that he was planning to “totally destroy” the Johnson Amendment—in the name of religious freedom.

Wait. The Johnson Amendment? What’s that?

Tellingly, that’s pretty much the history of the Johnson Amendment. Few noticed it when it was enacted and few understand it today. It is one of the many important legal stories of interest principally to tax policy nerds. As with many other pronouncements being issued by this President, this one seems to come from left field. Religious freedom in the US today is threatened by a 1954 amendment to the tax code? Really?

Interestingly, the story of Trump’s hostility to the Johnson Amendment closely parallels the story of then Senator Johnson’s original motivation in introducing the amendment. Neither of them was interested in religion. Each was trying to get elected.

According to the NYT, Trump’s interest in the Johnson Amendment apparently originated during the campaign when he asked a group of pastors who supported him why they weren’t speaking out more. They told him they were not legally permitted to do so. He took up their cause. Trumpeting their free speech rights was directly linked, in other words, to his effort to maximize votes. The Johnson Amendment itself also originated in a campaign. While the historical record is notably sparse, Lyndon Johnson was reportedly concerned not with empowering supporters but with muzzling charitable groups associated with his political opponents. There was no opposition to the amendment at the time. (Roger Colinvaux, “The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition” 62 Case Western Reserve Law Review 685 (2012), 689 n. 25) The effect on churches was almost accidental, a feature of the tax code, not the result of a desire to suppress free speech or religious freedom.

One characteristic of Mr. Trump’s political speech is his skilled use of compression and portmanteau concepts. He seems to be something of a genius at picking up and making use of anxieties and agendas that he can re-package to his own purpose. That his invocation of the Johnson Amendment is legible at all to the general public is the result of an interesting convergence of trends.

But first, a quick rehearsal of the provisions of the Johnson Amendment. Section 501(c)(3) of the Internal Revenue Code provides that exemption from the income tax is available to

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.

The amendment that resulted in the strictures of the last part of the section was proposed by then Senator Johnson from the floor to what would become the Internal Revenue Code of 1954. It passed without opposition. There are approximately 1.5 million registered §501(c)(3) charities in the US.

As Roger Colinvaux reminds us in his article on the effect of the Court’s decision in Citizens United on §501(c)(3) (cited above), while the Johnson Amendment story as usually retailed seems to suggest a sudden and unprecedented irruption of concern in 1954 about political activity by charitable organizations, skepticism about the political activities of charities was embedded in the common law of charities and continued to animate legal reformers in the early twentieth century when the Internal Revenue Code was adopted. Indeed, one might say that political activity had long been widely believed to defeat status as a charity. Thus, “[t]he Johnson Amendment,” notwithstanding its opaque legislative history, “. . . marked a continuation or culmination—at a glacial pace—of the discussion about politics and charity.” (p. 7) In contrast to the electioneering ban considered in Citizens United, Colinvaux argues, which was certainly intended to directly curtail and penalize political speech, the political activity provision of §501(c)(3) is definitional. Furthermore, charities can always organize a separate §501(c)(4) organization (which do not have such a prohibition) for political purposes. And some do.

So. What has changed to lend credibility to Trump’s proposal? Particularly with respect to religious organizations?

First, it must be underlined that churches are not prohibited from political activity. It is that if they choose to register as §501(c)(3) organizations in order to gain a tax exemption, a status that is a matter of grace not entitlement, they are, like other §501(c)(3) charitable organizations, prohibited from lobbying on legislation and speaking on behalf of candidates for public office. Many, perhaps most, Americans are fine with this. The prohibition on political activity of certain kinds helps to preserve churches from being exploited for exactly the partisan political ends sought by Trump. In any event, the prohibition is little enforced and many churches and pastors skirt the border without consequence. The policy also coincides with a lingering faith in the separation of church and state, a separationist idealism, if you will, that continues to animate the religious politics of most across the religious and political spectrum even while, at least in the Supreme Court, it continues to be eroded as a legal doctrine.

But there have been real changes to the politics of religion in the US in the last twenty-five years or so, particularly since the Court’s decision in Employment Division v Smith ending constitutionally mandated exemptions, and the shift among religious activists from judicial to legislative efforts, particularly with respect to various RFRA laws. (see this author’s post “The World That Smith Made”). Like Bush’s “faith-based initiative,” Trump’s call for a strengthening of laws protecting religious freedom depends on a very particular story of exclusion, one that is not entirely wrong, but which is also not entirely right, like his other stories of exclusion.

For my own part, I would argue that any plausibility there is to Trump’s call to destroy the Johnson Amendment rests in the fact that the line between religion and politics, between church and state, is becoming more difficult to maintain for a number of reasons. Religious and political authority is shifting away from the leaders who embodied the unity of churches and states. People everywhere are increasingly making their own choices about their religious lives. The assumptions that underwrote mid-twentieth century separationism simply no longer have purchase. (see also this author’s “The Impossibility of Religious Freedom”) I would also argue, paradoxically perhaps, that there is simultaneously a new corporatism in US religious politics, reflected in the Court’s decisions in EEOC v Hosanna-Tabor and Burwell v Hobby Lobby, a kind of rearguard action on behalf of the sovereignty of institutions, one which also blurs the line between religion and politics—business. (See my “The Church”). Trump’s ability to mobilize both unchurched and churched Americans is one more illustration of his remarkable capacity to marry grassroots populism to top-down forms of authority across a number of sectors.

Repealing the Johnson Amendment is considered unlikely by experts, if for no other reason than a concern over a resulting negative effect on revenue. That doesn’t mean that there is nothing to criticize about it. (I commend Roger Colinvaux’s article for a full treatment of the issues.) But neither its continued existence nor its repeal is likely to have a significant dampening effect on the rights of Americans to practice their religion.

Thank you to Ben Berger, Stan Katz, Fred Konefsky, and Barry Sullivan for comments.

-Winnifred Fallers Sullivan

Winnifred Fallers Sullivan is Professor and Chair of the Department of Religious Studies Indiana University Bloomington. She studies the intersection of religion and law in the modern period, particularly the phenomenology of modern religion as it is shaped in its encounter with law. She is the author of Paying the Words Extra: Religious Discourse in the Supreme Court of the United States (Cambridge: Harvard University Center for the Study of World Religions, 1994); The Impossibility of Religious Freedom (Princeton, 2005), Prison Religion: Faith-based Reform and the Constitution (Princeton, 2009), and A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (2014). She is also co-editor of Politics of Religious Freedom (Chicago 2015).

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