Few debates in the US nonprofit sector generate more emotion than the fate of the Johnson Amendment. This 1954 tax code provision, authored by then-Senator Lyndon Baines Johnson, prohibits nonprofits from endorsing or opposing political parties or candidates for office.
The push to repeal the Johnson Amendment has primarily come from the Christian right, which surely is one of the factors that had led mainstream nonprofit associations to defend these rules. But I think this reaction is mistaken, particularly because under newly declared Internal Revenue Service rules, religious congregations are now free to “endorse political candidates to their congregations.” In short, churches can now engage in campaigns, while secular nonprofits cannot. It is hard to understand how or why this status quo benefits mainstream nonprofits.
I realize that I am in the minority here. Rarely do I disagree with the National Council of Nonprofits. But given the rising threat of authoritarianism, now is not the time to stay nonpartisan.
How the Johnson Amendment Came to Be
Before the Johnson Amendment became law, nonprofits were neither apolitical nor nonpartisan. In the 19th century, voluntary organizations pushed for reforms in prisons, animal welfare, and—most significantly—the abolition of slavery. While it was uncommon for them to endorse candidates, advocacy was their lifeblood. Over time, the Johnson Amendment has dampened this culture of advocacy.
For the record, the Johnson Amendment was not designed to protect nonprofits.
Some suggest that the Johnson Amendment is essential because it shields charitable nonprofits from political entanglement and that undoing it would dismantle nonprofits’ unique role in American life.
For example, Akilah Watkins, president and CEO of Independent Sector, told NPQ this summer, “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….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.”
But the amendment’s origins, purpose, and adoption, as well as the sector’s long-standing engagement in politics, do not align with these claims. Regardless of whether the best course is to preserve, revise, or repeal the law, the debate should be grounded in facts rather than myths.
For the record, the Johnson Amendment was not designed to protect nonprofits. As outlined by Robert Penna in the Stanford Social Innovation Review, Johnson’s motivation for the amendment that ending up bearing his name in 1954 was political.
As Penna detailed, “In 1954, two wealthy Texans had used tax-exempt organizations they headed, the Facts Forum and the Committee for Constitutional Government, to support a young state senator who opposed Johnson in that year’s primary election. Johnson won handily but was reportedly incensed that two tax-exempt entities had opposed him.”
In short, the Johnson Amendment was likely crafted not as a noble defense of nonprofit integrity, but at least in part out of spite against two nonprofits that had opposed Johnson’s reelection.
Why is advocacy declining? There are many reasons, but I believe the Johnson Amendment has help make advocacy seem legally risky.
Does the Amendment Protect Nonprofits?
Intent and outcomes can differ, as nonprofit leaders and workers know all too well. Often, our intent is noble, but the outcome is less positive. Maybe the Johnson Amendment is an example of the opposite dynamic: The intent was ignoble, but the outcome was surprisingly beneficial.
Defenders say the Johnson Amendment shields nonprofits from political influence. But does it? I’ve worked as a nonprofit consultant for decades. What I see is that fear of the Internal Revenue Service has chilled nonprofit advocacy. Whatever we think is the cause of the declining advocacy, the fact of this decline is beyond debate, as Independent Sector research documents.
So why is advocacy declining? There are many reasons, but I believe the Johnson Amendment has helped make advocacy in general seem legally risky, even though it mostly limits direct endorsement of candidates or political parties. Yet who better than nonprofits—working daily on poverty, housing, education, and healthcare—would know which leaders would best serve their communities? In my own consulting work, I’ve repeatedly seen groups shy away from permissible lobbying or voter education because of the confusing laws and fear of the IRS.
So while the Johnson Amendment technically permits advocacy I believe its existence discourages both advocacy and civic participation.
I see a similar dynamic in higher education. High tuition fees discourage many students from applying, even though, if they were to apply, they would qualify for scholarships that actually make the cost of college affordable.
Just as some students and parents would rather not wade through financial aid forms to find out the real price they must pay, many nonprofit leaders would rather not think about how to keep their advocacy within legal bounds—easier not to advocate at all.
Moreover, there is an issue of justice here. Nonprofits have always shaped public policy. Why should election season suddenly muzzle them? Yes, there are risks in becoming too political, but the greater risk is failing our communities by staying silent.
Reversing the amendment, I contend, would not “destroy” the sector. Nonprofits would still be accountable, transparent, and mission-driven. But they would be better able to support the people they serve, who are directly impacted by who holds office and what policies they enact.
Might some nonprofits support right-wing candidates? Surely some would. But if the nonprofit sector leans progressive, then removing restraints on nonprofit political activity on balance ought to benefit that majority view. And for those who argue that we should maintain the Johnson Amendment to keep “dark money” out of politics, sadly that battle was lost long ago.
Johnson Amendment Pros and Cons
Because mine is a minority opinion, it’s worth reviewing some of the arguments for leaving the restrictions in place.
On its website, the National Council of Nonprofits lists four primary arguments in favor of keeping the amendment as is. Below, I offer my own brief responses to each.
- Donors turn away from some or all charitable nonprofits as the raw partisan actions of a few undermine the appreciation of the sector as the one place focused on improving people’s lives and safe from political discord.
My response: While donors may withdraw support when a nonprofit endorses a candidate that they oppose, it seems doubtful that there would be an impact on giving to other nonprofits that have not made the same endorsement.
- Nonprofit effectiveness is lost as board members with contrary views divert attention away from mission by arguing that the organization should endorse opposing candidates, whether business clients, family members, or college friends, creating ill-will and polarizing the board on other unrelated issues.
My response: Most boards I’ve worked with are docile, not the hard-driving, influential political operatives imagined here.
- Nonprofit missions are eroded when board members and/or wealthy donors demand that the organization take sides in local, state, or federal elections.
My response: What an interesting discussion that could be—it might energize boards to do more.
- Nonprofit integrity is destroyed as local college presidents, hospital executives, or preachers send out emails endorsing political candidates to alumni, former patients, or parishioners, thereby distributing a no-cost message (presumably satisfying the de minimis language in the legislation) but inducing candidates, their operatives, and their donors to exert immense pressure (whether lawful and moral, or not) on other nonprofits to follow suit or face repercussions.
My Response: What repercussions? I would love to see a more energized and involved community working toward an egalitarian democratic society.
Nonprofits, when they advocate, have demonstrated that they can be effective.
More broadly, the National Council of Nonprofits “works to create a culture in support of nonprofit advocacy…[by] supporting and preserving the longstanding federal policy that reserves the eligibility to receive tax-deductible charitable donations exclusively to 501(c)(3) tax-exempt organizations that refrain from participating in or intervening in any campaign on behalf of or in opposition to any candidate for public office.”
The NCN’s doubling down on nonpartisanship as a means to ensuring tax-deductibility may not be necessary. While many donors do appreciate a tax write off, it’s not the primary motivating force for giving. Giving also brings personal benefits: People who give are happier and even live longer, according to a Harvard study.
Tapping into the Latent Political Power of Nonprofits
Nonprofits, when they advocate, have demonstrated that they can be effective. Nonprofit Power: Building an Inclusive Democracy, published by Nonprofit VOTE, demonstrates that nonprofits can significantly increase voter participation, particularly among underrepresented groups. Voter turnout jumped by 10 percentage points for people who were contacted by nonprofits compared to those who weren’t. Seven in 10 voters believe nonprofits should provide registration, reminders, or rides to the polls.
With deep community roots, nonprofits are uniquely positioned to strengthen democracy—yet only one in six conduct voter registration and turnout, and just 13 percent provide voter education. I believe fear and legal confusion help keep many of the rest silent. When voting itself is at risk we should be doing everything we can to encourage it.
The Retreat of Influence report, commissioned by Independent Sector found:
- Only 13.2 percent of 501c3 organizations report conducting nonpartisan activities to help people vote
- Only 4.7 percent of nonprofits report registering people to vote
- Only 8.2 percent of nonprofits provide voters with information
- Only 7.7 percent of nonprofits engaged in nonpartisan get-out-the-vote activities
I would like to see a lot more politicians vying for the strongest interests of our community and working to earn the nonprofit vote. That would mean they would then also have to vie to address our constituents’ concerns. Yet today fear and confusion about legalities keep many nonprofits from acting, which in turn undermines effectiveness.
Repealing the Johnson Amendment would not compel nonprofits to endorse candidates, and most probably wouldn’t. What matters is whether nonprofits can openly advocate for leaders who reflect the needs of their constituents without fear. For those worried about endorsing a losing candidate, then don’t. Once in office, politicians still need nonprofits in their districts.
The nonprofit sector faces a stark choice. The argument that nonprofits should stay out of politics is no longer credible. The stakes are too high. As community organizers often say, you’re either at the table or on the menu. For too long, nonprofits have been on the menu. Now is the time for nonprofits to take their rightful place at the table.
