Earlier this week, the Trump administration’s Internal Revenue Service stated in a court document that churches and other houses of worship can endorse political candidates without losing their tax-exempt status—an announcement that would seem to overturn decades of established law firmly prohibiting all nonprofit organizations, including churches, from directly engaging in partisan politics.
One apparent consequence of the decision—the one seized upon by most media outlets so far—is that churches will be allowed to endorse political candidates. But the implications may go far beyond that, say nonprofit sector leaders, who warn that the blurring of the longstanding line separating nonprofits from politics could erode decades of public trust in charitable organizations, allow even more “dark money” to flow into politics via nonprofits, and potentially reshape American politics.
Attacking the “Johnson Amendment”
The body of law barring nonprofits from engaging in politics is known as the “Johnson Amendment,” named for then Senator Lyndon B. Johnson who introduced the measure in 1954.
“This action is not about religion or free speech, but about radically altering campaign finance laws.”
Conservative interests, including the Trump administration, have openly opposed the measure, characterizing it as interfering with political speech, and have signaled their desire to do away with it.
In a July 7 federal court filing, the IRS took a major step in that direction, stating that “communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.” The filing came as part of a proposed settlement with the National Religious Broadcasters and two Texas churches that sued the IRS, claiming the prohibition violated their First Amendment rights.
The IRS filing went on to compare political endorsements by churches to “a family discussion.”
Nonprofit Leaders Call Foul
Nonprofit leaders, who have been warning about the conservative push to overturn the Johnson Amendment and the consequences of doing so, are calling the IRS decision a ploy to use disingenuous arguments about the First Amendment as a cover for what is, in fact, an attempt to allow nonprofits, religious and otherwise, to funnel tax-deductible “dark money” contributions to political campaigns.
“This action is not about religion or free speech, but about radically altering campaign finance laws,” said National Council of Nonprofits President and CEO Diane Yentel in a statement. “The decree could open the floodgates for political operatives to funnel money to their preferred candidates while receiving generous tax breaks at the expense of taxpayers who may not share those views.”
“Charitable nonprofits are among the few remaining trusted spaces where people come together across differences to solve community problems.”
The Campaign Legal Center, a nonprofit government watchdog group, similarly warns that erosion of the Johnson Amendment “could lead to the creation of an array of new 501(c)(3) ‘super dark money groups’—groups organized as charities or religious organizations that will operate as tax-deductible vehicles for wealthy donors to secretly influence elections.”
Nonprofit advocates have also warned that allowing nonprofits to engage in partisan politics could undermine trust in the entire sector.
“Charitable nonprofits are among the few remaining trusted spaces where people come together across differences to solve community problems, and undermining the law that protects their nonpartisanship could severely damage the integrity and effectiveness of the entire sector,” noted Yentel.
Akilah Watkins, President and CEO of Independent Sector, echoed those concerns.
“The Johnson Amendment has long served as a critical safeguard, keeping charities free from the partisan politics that are increasingly infiltrating every aspect of our society,” Watkins told NPQ. “Our organizations are among the most trusted institutions in the country, and the Johnson Amendment has played a major role in earning that trust.”
“We must keep politics out of charity—period,” said Watkins.
Even prior to the recent decision by the Trump administration’s IRS, organizations across the nonprofit sector were sounding alarms over the potential for any dismantling of the Johnson Amendment to erode trust in nonprofits, which currently enjoy high levels of trust from the public.
“Once charities begin supporting certain candidates and parties, they run the substantial risk of being labeled politically, which will alienate a certain segment of supporters, leading to a drop in support,” noted the Association of Fundraising Professionals in a recent statement opposing the proposed repeal of the Johnson Amendment. “How can an organization purport to represent a community when it is seen as only supporting a certain party?”
Legal Challenges Ahead
Despite the IRS decision, advocates for the separation of church and state argue the agency cannot unilaterally overturn congressional legislation.
“This action, while unconscionable, does not and cannot repeal an act of Congress,” said the Freedom From Religion Foundation on its website, noting that the current IRS position technically applies only to the two Texas churches involved in the litigation—Sand Springs Church and First Baptist Church Waskom—though the broader implications remain unclear.
“We must keep politics out of charity—period.”
Advocacy organization Americans United for Separation of Church and State has urged the government and courts to uphold to the Johnson Amendment, asserting that “Without the limitations put into place by the Johnson Amendment, taxpayers would essentially be forced to subsidize the political campaign activities of churches and other nonprofits.”
While the IRS may be able to decline to enforce existing law, formal repeal of the Johnson Amendment would require legislative action.
What’s Next
As the legal and political implications of the IRS decision continue to unfold, nonprofit sector leaders are watching closely for signs of broader enforcement changes and/or other attempts—whether through the courts or administrative or legislative action—to undermine status quo on nonprofits and political endorsements.
