Mike Johnson Wants to Unleash Ministers on Politics
With the unexpected rise of Mike Johnson to the House speakership, reporters have been delving into his past, focusing in particular on positions he’s taken on topics like abortion, guns, and the 2020 election, as well as his proximity to Donald Trump. Most reporting has commented on Johnson’s conservative Christian beliefs, which at times veer close to Christian nationalism. However, there is an important tax angle. There always is. In this case, it seems almost certain that Johnson will attempt to repeal or weaken the Johnson Amendment (no relation!), which bans tax-exempt organizations, including churches, from participating in political campaigns.
The Johnson Amendment was enacted in 1954, at the insistence of Sen. Lyndon B. Johnson. The raw politics story is that Johnson was aggravated by opposition from tax-exempt groups and sought to hamstring them by putting their tax-exempt status at risk if they continued to do so. There is, however, an important policy logic behind the amendment.
Section 501(c)(3) of the Internal Revenue Code grants tax-exempt status to charitable, educational, and religious organizations, which are supposed to dedicate most of their efforts to their “exempt purpose” and serving a charitable class. Not only do we exempt their income from income tax, but we also allow donors to deduct their contributions to these groups against their income. In contrast, we have determined not to subsidize political speech or activities via the tax code. That’s why you can’t deduct contributions to candidates or political parties. We do grant tax exemption to 501(c)(4) organizations, which are allowed to get involved in politics in a limited way, but we don’t allow deductions for contributions to such organizations.
It doesn’t take a rocket scientist to figure out what would happen if we were to allow charities to get involved in political activities. Most donations to candidates and political parties would cease, and the money would flow instead to specially created tax-exempt orgs so that donors could deduct their political contributions. The trick would be to ensure a sufficient exempt purpose so the organization can obtain and then retain its tax-exempt status. More troubling, traditional charities would likely get into the game, unable to resist the lure of additional money. One can easily imagine the Environmental Defense Fund or the National Police Foundation accepting money to endorse a given candidate. Do we really want to (further) politicize causes that should be nonpartisan? Our experience with climate change suggests otherwise.
But what about churches? It can be hard to separate church teachings from what goes on in the world of politics. Laws often address the major moral questions of the day, ranging from birth (abortion) to marriage to death (assisted suicide, the death penalty), all topics on which religions typically have something to say. Moreover, churches have First Amendment protections. The government is not allowed to infringe on the free exercise of religion, which could encompass speaking out on important public issues.
The Johnson Amendment doesn’t prohibit ministers from engaging in politics. But it conditions tax exemption on refraining from doing so, just as it does for all other tax-exempt organizations. Until recently, the expectation was that generally applicable rules would apply to all, regardless of their religious beliefs. However, the Supreme Court has slowly but surely been whittling away at this, granting those with religious beliefs exemptions from a variety of rules ranging from contraception coverage to anti-discrimination laws. One can easily imagine the court deciding that an exemption is warranted here as well.
We typically think of the separation of church and state as preventing majorities from imposing their religious beliefs and practices on minorities or protecting religious organizations from government interference. However, there is a third category of harm that deserves careful consideration. Religion tends to be about absolute truths and unbending principles. In contrast, politics is often about compromise and self-interest. It is not always pretty. Politicians can be quite flawed individuals, and the danger to religion and religious organizations is that they will end up compromising their own doctrines, moral codes, and commitments to core values in support of one politician or political party or another.
David French has poignantly and repeatedly discussed the ways in which the religious right, of which he is a devoted member, has gone astray in its affiliation with President Donald Trump, abandoning some of Christianity’s core teachings in support of a deeply flawed individual or in pursuit of worldly political power. How else to explain their unwillingness to criticize a twice-divorced adulterer who bragged about assaulting women and is heading to trial for lying about payoffs made to a porn star? To put it in terms that might be more familiar: “What good will it be for someone to gain the whole world, yet forfeit their soul? Or what can anyone give in exchange for their soul?” (That’s Matthew 16:26.)
The First Amendment requires some activities, prohibits others, and has a third category—the play between the joints—in which Congress could act if it wanted but is not required to do so. Assuming that the Supreme Court does not eventually require Congress to allow ministers to engage in politics from the pulpit, religious organizations should take a good, hard look at whether this is actually a path they seek to go down. If you lie down with dogs, you can’t be surprised if you wind up with fleas.
Although Speaker Johnson clearly has ministers in mind, the Free Speech Fairness Act he has sponsored every year since joining Congress in 2017 is broader than that. It would permit any tax-exempt organization to retain its tax-exempt status if political activities are undertaken “in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose” and if it results in “no more than de minimis expenditures.”
This may sound fairly straightforward and appears to address some of the concerns about tax-exempt organizations getting involved in political activities described above, but in practice it would create a host of issues that would likely further entangle church and state. The de minimis requirement would certainly prevent churches and other organizations from conducting in-person polls or engaging in expensive mail campaigns on behalf of candidates. However, much of what happens today does so online, whether through emailed newsletters or streaming services. The marginal cost of adding an article to a newsletter or 10 minutes to a sermon supporting political candidates would likely be considered de minimis. Indeed, the cost of a newly scheduled sermon devoted entirely to political matters would be likely deemed de minimis. How does one allocate costs? Where precisely is the de minimis line?
The image supporters would like to project is a minister stating during a sermon that he supports candidate X because X reflects his religious values. However, we know from experience that many churches will push the line, daring the IRS to audit and intervene. And that never ends well for the IRS, at least in the court of public opinion, which is why the IRS has taken such a light hand when it comes to overseeing the special tax benefits afforded to religious organizations.
Repealing or otherwise weakening the Johnson Amendment, at least for churches, was one of Trump’s top priorities, though, like many of his priorities, it did not come to pass. Johnson has long supported this effort. Given his conservative Christian background, close connection to Trump, and newfound power to control what legislation gets to the floor for a vote, don’t be surprised if Johnson takes on Johnson in the near future.
