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Why Congress shouldn't repeal or weaken the Johnson Amendment

REUTERS/Jonathan Ernst
In May, President Trump signed an executive order that asks the IRS to be lenient in its enforcement of the Johnson Amendment with religious organizations.

President Donald Trump has vowed to repeal the Johnson Amendment, a tax law signed in 1954 that prohibits tax-exempt organizations – including religious and charitable organizations – from endorsing or opposing specific candidates and engaging in partisan activities.

Kristi Rendahl

In May, President Trump signed an executive order that asks the IRS to be lenient in its enforcement of the Johnson Amendment with religious organizations. Currently, buried in a 250-page appropriations bill is a provision that the IRS be required to jump significant hurdles before investigating religious organizations that explicitly endorse or oppose candidates and engage in partisan activities. Tax-exempt nonprofits without a faith affiliation, on the other hand, would be subject to the amendment as they have been for over 60 years.

Repealing or even weakening the Johnson Amendment is a mistake. Tax-exempt organizations – chiefly 501(c)(3) nonprofit organizations – are already able to conduct public education on policy issues and engage in public policy advocacy, and indeed they do. These efforts are quite distinct from the endorsement of and opposition to specific political candidates, not to mention raising money for them.  

This is not a conversation about giving back the voice of the people, as the president has argued. Right now, any organization can endorse or oppose candidates for office with just one caveat: Give up your tax-exempt status.

Would threaten civil society

The repeal or weakening of this amendment would threaten civil society as we know it. It would mean that individuals could give tax-deductible contributions to 501(c)(3) organizations based on their stated support or opposition of candidates or political parties, rather than for the services provided in the community. Faith leaders in churches, mosques, synagogues, and temples would be pressured to use their voices during every election cycle. Community organizations would become extensions of campaigns, while enjoying tax advantages unavailable to other organizations.

Additionally, contributions would not be subject to campaign finance limits that apply to contributions directly to candidates or political action committees. Since 501(c)(3) organizations are not obliged to report the names of their donors, there would be no transparency about who is influencing the activities of the organization that has a preferential tax status. Forget about “following the money,” because no one will tell you where it came from.

And, depending on which party is in power at a given time, repealing or weakening the amendment creates the potential for extra scrutiny by officials based on the stated ideology of the organization. I’ve seen this in my work with civil society organizations around the world; it’s not democratic, and it’s not pretty.

Campaign financing mechanism, with no rules

In a nutshell, repealing the amendment would mean de facto campaign finance through religious and charitable organizations, but with none of the rules. This would be a disaster for our society. We in the U.S. can’t afford more cynicism, more division, and more manipulation by powerful interests.

The current appropriations bill that includes this provision accounts for roughly one-third of the federal budget. They assume that people will not notice this detail.

Now is the time to call your U.S. senators and representatives to ask them to protect the Johnson Amendment. Tell them not to dilute the laws that keep tax-exempt organizations – including religious organizations – from focusing on their most important work in our communities.

Kristi Rendahl, D.P.A., will be, beginning Aug. 14, an assistant professor and director of the Nonprofit Leadership Program at Minnesota State University, Mankato.

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Comments (5)

Dead letter

I quite agree with this commentary but it's my impression that the IRS has made the Johnson amendment a dead letter simply by lack of enforcement in the last 9 years anyway. The last time I recall hearing about any 501(c)(3) organization getting hassled about engaging in partisan activity was in 2003 when a minister at a California church as I recall was investigated by the Bush IRS for speaking out against the Iraq War.

By definition, 501 (c)(3) nonprofits are required to be "nonpartisan" yet when Obama's IRS Commissioner was undertaking an investigation of violations of the Johnson Amendment, she was pilloried by right wing partisans for being "partisan" by allegedly selectively investigation "right wing" 501(c)(3)'s. If there was any substance to this charge,, it was because the right wing has been the most successful in converting the 501 (c)(3) into another channel for corrupting politics. As Jane Mayer has ably shown in her book "Dark Money", partisan 501 (c)(3)'s are an integral part of the Mighty Right Wing propaganda wurlitzer. What is the American Legislative Exchange Council (ALEC) but a right wing propaganda organization? Name any of the Koch, Scaife, Bradley or Olin organizations and they are partisan. True, there are some "left-leaning" 501 (c)(3)'s but only because the right has succeeded in making everything from evolution to climate or earthquakes a partisan issue by "educating" people about these issues. Since when has American needed help in dumbing down?

Too many 501(c)(3)'s are already serving as de facto campaign financing tools. I suppose nothing in the current dilapidated state of the law precludes a 501(c)(3) entity from dark funding issue ads in a political campaign. I would second the commentator's call to save the Johnson Amendment and also ask for a clarification to redefine "partisan" to preclude the use of 501 (c)(3)'s for propaganda or political advocacy or directly or indirectly financing ads in any political campaign.

Dead letters

While the theory is fine, the practice is impossible.When they want to, religious leaders are perfectly capable of making their views known in the clearest terms possible, without ever mentioning specific names. As for charitable organizations generally, it's also a problem but not worth the effort to do much about. When slight efforts were made in that direction during the Obama years, the result was far more damage to the president than anything these organization could have accomplished on their own. Perhaps the most disturbing thing about these entities isn't their politics or political impact; it's mostly that they are scams to enrich their organizers without any other result at all.

Saudis & Putin

Without the Johnson Amendment, what is to stop me from setting up a church, and accepting money from the Saudis, Putin, or any other foreign entity? Then i can spend it any way I want, as far as elections are concerned.

That's the real danger.

Putin

There is very little, in terms of enforcement, stopping people from setting up highly politicized charitable organizations. Let's recall how this played out during the Obama administration. They were criticized for discriminating against right wing political charities. Somehow, nobody ever got to the question of whether such charities should be politicized under the law. On the whole, trying to enforce these laws was difficult, constitutionally troubling, politically self defeating, and never worth the effort.

Worth the effort

It is true that trying to enforce these laws is difficult for many reasons, including that it is politically self-defeating. Whether that makes it not worth the effort is undoubtedly a matter of weighing costs against the benefits but for whom. But if it's even a partisan issue whether rules deigned to maintain integrity and honesty are to be enforced or created, then there can no foundation for a Republic let alone a Democracy. It's by the same logic that Congress is incapable of adopting laws or rules for disclosure of campaign financing by "independent" groups and by extension the logic that makes relativistic and subjective the difference between right and wrong or bribery and honest governance. Obama ended up being too weak and feckless of a President to take on any strong positions on ethics or integrity. This is the President who appointed the same leaders of finance who created the 2008 financial meltdown to his cabinet and an nominated an Attorney General who could not conceive of even prosecuting his former and future clients. If it's not worth the effort to enforce these modest and reasonable rules, then it's not worth the effort of maintaining any pretense of this country being a "free" one.