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Lyndon Johnson, a senator from Texas in 1954, was facing a tough primary campaign. Some of his major detractors were non-profit organizations (not churches) that published material in support of his opponent. Senator Johnson proposed an amendment to the tax code saying that 501(c)(3) organizations, churches among them, cannot “participate in, or intervene in (including the publishing or distributing for statements), any political campaign in behalf of (or in opposition to) any candidate for public office.” The amendment was adopted with little discussion of how it might impact churches. That means there was no consideration of how this act would relate to the establishment or free exercise clauses of our constitution’s first amendment. Later IRS interpretations of the amendment prohibit activity that has the “evidence of bias” or the “effect” of favoring a candidate or party. Clear as mud? President Trump said at his first national prayer breakfast that he would work for the amendment’s removal. The response to his statement of intent drew responses largely partisan.
The amendment has rarely been used to challenge the tax exempt status of a church. According to Pew Research, 28 percent of black Protestants heard their pastors support Hillary Clinton during the 2016 campaign and about 20 percent heard denunciations of Donald Trump from their pastors. Four percent of white Protestants reported hearing pastoral admonitions in favor of a presidential candidate and 7 percent heard denunciations of a candidate. In some cases pastors have preached “political” sermons and sent the manuscript to the IRS as a statement for pulpit freedom. But mostly the IRS hasn’t bitten. Most pastors are intimidated by the law though and steer clear of politics to be safe. Playing on this and the fact that most pastors feel bound to abide by the law, liberal front groups like the Interfaith Alliance and the Baptist Joint Committee for Religious Liberty have regularly written letters and columns warning pastors from saying anything about political issues or candidates. It works much of the time.
In spite of its rare enforcement, I favor the repeal of the amendment. Suppose you have a school zone light in front of an abandoned school building near your home. The light blinks each day starting at 2:30 but everyone in town ignores it. For years, no one gets a ticket for disregarding the blinking light. Then one day it is strictly enforced; every scofflaw gets a ticket. Just because the Johnson Amendment has not resulted in many churches losing tax exempt status doesn’t mean it won’t. The amendment and its prophets have had a dampening effect on pulpit freedom in the meantime.
Some say political speech from the pulpit violates the First Amendment separation of church and state tradition. It doesn’t. There are no prohibitions of religious speech or activity included in the First Amendment. Others claim tax-exempt churches receive an “indirect subsidy” from the state. Therefore the state has some right to limit speech. The subsidy argument implies that churches exist at the indulgence of the magistrate. It also implies that they, unlike hospitals, children’s homes, community advocacy groups, add no value to the community or that church members are not tax-paying citizens who rightfully expect the fire department to come when the auditorium goes up. By the way, the existence of the Johnson Amendment has in no way addressed the idea that tax-exempt status is a subsidy. This argument is a red herring.
But the best argument against the Johnson Amendment is that no governmental body has the expertise or should have permission to judge the suitability of religious speech. For this reason, courts rarely arbitrate theological or ecclesiological disagreements. They wisely say, “It’s not my job, not part of my authority.” That is true.
Now, should pastors speak in favor of or against candidates and partisan issues? Was John being political when he criticized Herod in Mark 6? Was Nathan when he confronted David in 2 Samuel 12? The Bible is chock-full of prophets praising and criticizing kings and communities. So I’d say “yes,” pastors should, under the leadership of the Spirit and from the message of the Word, preach as they are led of God. Sometimes that speech is going to irritate a senator, president or police chief.
Some of us will overdo it and become expositors of policy rather than Scripture. It is not the business of the IRS to address such excess. Some of us already spend too much time preaching self-help and pop psychology. Political speech is not worse than those, or more off track. We really don’t need any government entity to help us stay faithful to our calling. They can’t do it well anyway.
In 1954, the IRS code was not amended to clarify the U.S. Constitution. It did not interpret the First Amendment. The Johnson Amendment meddled in a realm that our political institutions cannot understand even when some individuals in government are well-grounded believers. Laws are not subtle, not sharp enough to discern the thoughts and intents of the heart. That is the work of God’s Word, wielded by God’s people, under the headship of Christ. Our magistrates should leave us to it.
