Sunday morning political endorsements played a major role in encouraging 13 British colonies to declare independence and chart their own path, Michael Donnelly explained on American Family Radio Thursday. But for the past several decades, he said, American pastors have been silenced by a provision to the tax code, the Johnson Amendment, which was first introduced in 1954 by future President Lyndon B. Johnson, then a U.S. senator from Texas.
In short, it said churches and nonprofits cannot endorse or oppose specific political candidates, nor can they donate or use their resources in support of candidates. In fact, doing so could jeopardize their tax-exempt status.
But on Monday – in response to a lawsuit brought by two Texas churches, the National Religious Broadcasters and the Christian nonprofit Intercessors for America – the Trump administration’s IRS changed its tune.
In a court filing the IRS says churches can now endorse political candidates. The New York Times first reported the news.
“It was the preachers, the black-robed brigade – and that doesn't mean the judges – who helped to lead the charge for independence back at the beginning of this country, explaining why it was appropriate for the colonies to separate from the mother country. This idea that pastors, priests, churches, ministers cannot speak to the views of somebody who would lead this country is just completely ridiculous,” Donnelly told show host Jenna Ellis.
The lawsuit is still to play out, but the IRS position is clear.
According to Donnelly, Sen. Lyndon Johnson – a Democrat – became interested in limiting speech because a couple of education-related nonprofits had been critical of him. In the years since his amendment became law, non-Christian groups have used it to make trouble for pastors, the law professor said. The result has been political silence from the pulpits.
“Organizations like People for the American Away and Americans United for Separation of Church and State and the Freedom from Religion Foundation – these are the ultra-secular anti-Christian organizations, and they are the ones who use this language to make complaints to the IRS. You also had bureaucrats in the government doing what bureaucrats do, pass rules to control people, and the secularists kind of gained control,” Donnelly said.
Confusion and fear among pastors grew, according to Donnelly. Most seldom ventured close to the sun in political speech.
President Donald Trump and numerous Republican lawmakers – Senators James Lankford and Ted Cruz and Representative Steve Scalise among them – have called for the removal of the Johnson Amendment.
The IRS this week stopped short of that but did weaken it.
Trump took on Johnson Amendment in 2017
In 2017 Trump, then in his first term, issued an executive order instructing the IRS to relax enforcement of the amendment. Church leaders should be allowed to “speak freely and without fear of retribution,” Trump argued.
The IRS has offered a commonsense response to an unenforceable edict, says Ryan Tucker, senior counsel with Alliance Defending Freedom.
“The IRS now recognizes it cannot punish churches for their pastor’s sermons,” he told AFN. “Think about it. Are we going to have IRS agents reviewing sermons line by line to determine whether or not they happen to overstep a line? That’s ludicrous and unconstitutional, and I think that’s the main reason the IRS decided to take the position it has. Hopefully, administrations moving forward will take the same tack that the current one has.”
This fresh guidance from the IRS has been a long time coming, said former Catholic priest Frank Pavone, who now heads the pro-life nonprofit Priests for Life. As he points out, the Johnson Amendment doesn’t mention churches specifically but addresses groups that identify as 501(c)3 entities under the tax code – which most churches do.
“The argument I make is that it is not through the tax-exempt letter of qualification from the IRS that they get their tax exemption. Churches have it by their very nature as churches, an idea that predates our Constitution and our nation,” Pavone told Ellis.
“It goes back thousands of years that churches, because they're bearing witness to the kingdom of God, have a freedom to speak that even transcends our constitutional rights,” he said.
Part of the Priests for Life mission is advancing any protections for the unborn, Pavone said – and that includes electing pro-life candidates. In that regard, the law has left the organization hamstrung. Priests for Life has had actions taken against it because of the amendment, Pavone said.
“We have been very vocal about the problems with the Johnson Amendment. We agree with those attorneys who say that it is unconstitutional for various reasons,” he concluded.
New reality will be a slow thaw
Don’t expect most pastors to engage in political speech immediately. Hesitant for years, most will wait for the settlement document and consent decree, Donnelly predicts, but he expects those to be forthcoming.
Pastors will then be able to endorse candidates. They’ll be able to talk about their own political views and about the actions of politicians within the context of preaching and teaching, Donnelly said.
“When this is approved, and I think it will be, it’s very clear,” he added.
