Fix, Don't Repeal, the Johnson Amendment

photo-1467070607100-22fd5b4f38ac_optRecently, I appeared on the Up for Debate radio program hosted by Julie Roys to debate the status of the Johnson Amendment. The Johnson Amendment forbids non-profit organizations from electioneering. Some religious groups want to repeal the amendment in order to allow pastors to endorse candidates for office without putting church tax exempt status at risk. Erik Stanley of Alliance Defending Freedom argued for the repeal of the amendment.
While discussing the matter, I volunteered that I have no problem with pastors expressing their views about political candidates but I do have a problem with tax exempt churches using tithes and offerings for political purposes. Those funds are exempt from taxation and as such should not be funneled into support for specific candidates. In short order, churches would become political action committees with donors getting a tax exemption for money eventually going to fund partisan politicking.
In response, Erik Stanley mentioned the Free Speech Fairness Act (HR 781/S264). Stanley characterized the bill as a fix for the Johnson Amendment, not a complete repeal. The text of the bill is as follows:

1st Session
H. R. 781
To amend the Internal Revenue Code of 1986 to allow charitable organizations to make statements relating to political campaigns if
such statements are made in the ordinary course of carrying out its tax exempt purpose. _______________________________________________________________________
February 1, 2017
Mr. Scalise (for himself and Mr. Jody B. Hice of Georgia) introduced the following bill; which was referred to the Committee on Ways and Means
To amend the Internal Revenue Code of 1986 to allow charitable organizations to make statements relating to political campaigns if
such statements are made in the ordinary course of carrying out its tax exempt purpose.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Free Speech Fairness Act”.
(a) In General.–Section 501 of the Internal Revenue Code of 1986 is amended by adding at the end the following new subsection:
“(s) Special Rule Relating to Political Campaign Statements of Organization Described in Subsection (c)(3).–
“(1) In general.–For purposes of subsection (c)(3) and sections 170(c)(2), 2055, 2106, 2522, and 4955, an organization
shall not fail to be treated as organized and operated exclusively for a purpose described in subsection (c)(3), nor
shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any
candidate for public office, solely because of the content of any statement which–
“(A) is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and
“(B) results in the organization incurring not more than de minimis incremental expenses.”.
(b) Effective Date.–The amendments made by this section shall apply to taxable years ending after the date of the enactment of this

So if the speech is made in the course of carrying out tax exempt purposes and results in insignificant costs, the speech would be permitted. Given the restriction on spending, this is not a repeal but a fix.
But is it an adequate fix? I argue that it is not. I don’t think any loophole for churches to spend tithes on political purposes, even de minimis, should be allowed. What is de minimis to one church might not be considered de minimis to another. Furthermore, the point of fixing the free speech problem should be on speech, not money. In kind contributions should also be forbidden. As this is written, I don’t support it.
One of the co-sponsors is Jody Hice a Christian from Georgia who sounds dominionist tones. He talked about the “repeal” of the Johnson Amendment at a recent David Barton sponsored meeting.
As I have noted before, most pastors don’t want to endorse candidates from the pulpit which is as it should be in my opinion.

The Futility of Donald Trump's Johnson Amendment Promise: Most Pastors Don't Want to Endorse Political Candidates

trump donate campaignCBN’s The Brody File reported yesterday that Donald Trump will speak to a group of pastors in Florida about repealing the Johnson Amendment.

GOP presidential nominee Donald Trump will be speaking to hundreds of pastors this Thursday in Orlando, Florida. This is a private event sponsored by the American Renewal Project. Trump will speak to them about his push to repeal the Johnson Amendment. The law, which has been in place for decades, is perceived by some Christians as making it more difficult for pastors to speak out on political issues and candidates from the pulpit.

Correction: the amendment doesn’t prevent speaking on “political issues.” It does prohibit all tax-exempt organizations from campaigning or advocating for specific candidates.  Here is the IRS guidance on the matter:

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity.  Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.
Certain activities or expenditures may not be prohibited depending on the facts and circumstances.  For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.
On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

The prohibition is about campaigning for a person, not speaking out on issues. Ministers may speak about any issue and even speak in favor of a candidate, but they may not involve their churches in partisan campaign activities. It is very sad to me that any minister would want to use the church of Christ to promote a candidate but since some would, I am actually glad that the Johnson Amendment exists.
Many Christian supporters of Trump (e.g., Eric Metaxas today) think it is a big deal that Trump wants to pursue a repeal of the Johnson Amendment. If one can rely on surveys, many pastors don’t agree. According to a Christianity Today analysis, most pastors don’t want to endorse specific candidates from the pulpit or on behalf of the church. For instance, CT cited a Lifeway Research survey which found that a whopping 87% of pastors disagreed with the statement: “Pastors should endorse candidates for public office from the pulpit.” Only 29% of a Pew Research sample of Protestants and Catholics felt that churches should endorse candidates during elections.
I am glad a majority of ministers don’t want to use the church as a political tool. Doing so subordinates the mission of the church to political aims. Taking sides also risks alienating church members who disagree. Those members can feel coerced to vote consistently with the church endorsement.
Furthermore, the IRS isn’t enforcing the law. According to CT, thousands of pastors have violated the law (just think of that when you hear Trump say he’s the law and order candidate), but the IRS hasn’t done much about it.  Trump’s Johnson Amendment promise is just another substance-free hook to hoodwink evangelical voters and soothe the doubts of evangelical endorsers.
Brody’s analysis of the Florida event is a pretty good argument why the Johnson Amendment isn’t currently relevant to what churches actually do. Brody said:

Events like this one will be crucial to Trump if he wants to beat Hillary Clinton. The reality is that evangelical pastors are a major key ingredient to mobilizing the masses. They hold great power over a captive audience every week in the pews. Trump needs them engaged. If they are, the flocks will typically follow. The result? A bottom up approach that will affect turnout exponentially. The top down approach of receiving key endorsements won’t do squat unless the evangelicals sitting in the pews are motivated. Trump shouldn’t assume that the anti-Hillary sentiment will be all he needs. No. He needs to do some work and by showing up in Orlando he’s well on his way to striking evangelical gold.

If Brody is right, then why does the Johnson Amendment matter? If Trump can get those pastors on his side, they will go pull spiritual rank on the captive sheep and the flock will get in line. There’s evangelical gold in them there churches and Trump needs to mine it like a boss.
I hope Brody is wrong. First, I hope most pastors will continue to resist a church endorsement of a candidate, and second, I hope the sheep break free from their captivity and become independent in their thinking and voting.