On May 4, President Trump and leaders in Congress took aim at nonprofit nonpartisanship with a pair of actions that were, in the words of the National Council of Nonprofits, “coordinated, ruthless, and effective.” These moves follow up on President Trump’s February announcement that he intends to “get rid of and totally destroy the Johnson Amendment.”
The Johnson Amendment is another name for the provision in Section 501(c)(3) of the Internal Revenue Code that provides that charitable nonprofits can’t endorse or oppose candidates for office, can’t coordinate their activities with candidates, political parties, or PACs, and must refrain from making political campaign contributions. It was introduced in 1954 by then-Senator Lyndon Johnson before being passed by a Republican Congress and signed into law by President Dwight Eisenhower. Most 501(c)(3) organizations support the Johnson Amendment since it protects the public’s trust in the nonprofit sector and prevents politicians from getting their hands on donations intended to go toward the programs and services of charitable nonprofits.
What happened on May 4?
On Capitol Hill, two subcommittees of the House Oversight and Government Reform Committee investigated the topic of “Examining a Church’s Right to Free Speech.” During the hearing, subcommittee leaders, including Congressman Mark Meadows (R-NC) argued the case that churches and other 501(c)(3)s should be allowed to engage in partisan politics. The Center submitted a statement for the record to Chairman Meadows, whose district is home to hundreds of 501(c)(3) nonprofits in Western North Carolina, explaining why proposed legislation to eliminate or weaken the Johnson Amendment is unnecessary and would be harmful to nonprofits and the communities they serve. Congressman Meadows and some others on the subcommittees appeared to endorse legislation known as the Free Speech Fairness Act (H.R.781 and S.264) that would weaken the Johnson Amendment by allowing charitable nonprofits, churches, and foundations to endorse political candidates in statements “made in the ordinary course of an organization’s regular and customary activities in carrying out its exempt purpose” and spend a de minimis amount doing so.
Meanwhile, at the White House, President Trump issued an Executive Order on “religious freedom.” In his public remarks, the President suggested that this Executive Order takes the first step toward repealing the Johnson Amendment by giving the Internal Revenue Service wider latitude in enforcing laws that prohibit churches and religious institutions from taking part in partisan politics. In reality, the actual language of the Executive Order makes no changes to the actual law and has only a very limited impact on enforcement by the IRS.
These recent actions brought to the surface five common myths about the Johnson Amendment. As the nonprofit sector comes together to fight to preserve nonprofit nonpartisanship, it is important that we are able to debunk each of these myths.
Myth #1: The Johnson Amendment limits churches’ right to free speech.
There are two problems with this myth. First, the Johnson Amendment applies to all 501(c)(3)s, not just to churches. Second, 501(c)(3) organizations – including religious institutions – have broad free speech rights under the existing law. The IRS has issued written guidance that makes clear that nonprofit leaders are free to express their political beliefs as long as they do so in their individual capacity rather than as official representatives of the organization. The same guidance makes clear that 501(c)(3) nonprofits have broad latitude to engage in issue advocacy. This leads to the second myth . . .
Myth #2: Politics and policy are the same thing.
It might seem like semantics and/or legalese, but engaging in partisan politics is very different from speaking out on policy issues. The Johnson Amendment prohibits 501(c)(3) organizations from engaging in the partisan political process, but it doesn’t limit issue advocacy by nonprofits. Nonprofit organizations can and should help shape the public dialogue on policy issues related to their missions, such as the needs of homeless veterans, the importance of child and adult literacy programs, the effectiveness of early childhood education, or the best ways of delivering health care to individuals with mental illness. Notably, leaders of churches and other nonprofit religious institutions can legally help inform their congregations about a variety of policy issues important to their faith, such as the sanctity of all human life, social justice, immigration policy, and religious freedom.
Myth #3: President Trump’s Executive Order repealed the Johnson Amendment.
This one is wrong for two reasons. First, the Johnson Amendment is a federal statute. Anyone familiar with either Schoolhouse Rock! or Hamilton knows that Congress, not the President, passes legislation to create and change laws. The President has no authority to repeal a statute by Executive Order.
Second, despite the President’s statements to the contrary (and much of the media coverage about his statement), the Executive Order doesn’t actually do very much. The relevant language in Section 2 of the Executive Order provides: “[T]he Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”
In case you had trouble following that language or reasoning (which I did the first dozen or so times I read it!), here is a rough translation: The Executive Order directs the IRS to: (1) continue its current practice of not taking action against churches or pastors when they speak out on moral or policy issues; and (2) not change its interpretation of what constitutes partisan political activities. And the concern about IRS enforcement is somewhat of a red herring; in the 63 years that the Johnson Amendment has been law, the IRS has only revoked the tax-exempt status of only one church because of partisan political activity. The reality is that 501(c)(3) nonprofits and churches that endorse candidates are much more likely to hurt their own reputations with donors, clients, and the public than they are to lose their tax-exempt status.
The bottom line is that federal tax law still prohibits 501(c)(3) organizations from endorsing candidates, making campaign contributions, or coordinating activities with political campaigns.
Myth #4: Legislation to weaken – but not totally repeal – the Johnson Amendment is a reasonable compromise that won’t harm nonprofits.
Several speakers at the May 4 congressional hearing noted that the changes to the Johnson Amendment proposed in H.R. 781 and S.264 would still not allow contributions to 501(c)(3) to be diverted to political campaigns as “dark money.” Some in Congress have suggested that this addresses nonprofits’ concerns about the legislation to weaken the Johnson Amendment since it would still prohibit 501(c)(3) nonprofits from making political campaign contributions.
It’s a trap! In reality, by legitimizing political statements such as endorsements that are made “in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose,” the legislation is inviting 501(c)(3) nonprofits to transform themselves into Democratic charities or Republican charities. This would damage the public’s trust in all charitable nonprofits.
Furthermore, the legislation would allow nonprofits to spend a “de minimis” amount in making these political statements. Because the legislation doesn’t define how much political spending is “de minimis,” it would give the IRS wide latitude in making this determination and could lead to different standards for different types and sizes of 501(c)(3) organizations. In the short term, this could create pressures for nonprofits to divert some of their staff, volunteer, and financial resources toward making partisan political statements instead of providing mission-related services. It also creates a slippery slope that could ultimately lead to Congress allowing more political spending by 501(c)(3) nonprofits, paving the way for the eventual total repeal of the Johnson Amendment.
Myth #5: There is nothing your nonprofit can do to protect nonprofit nonpartisanship.
The May 4 congressional hearing and Executive Order should make it eminently clear that the threat to 501(c)(3) nonprofits is real. Congress could vote on H.R. 781 or S.264 later this year. Or congressional leaders could include language to weaken or eliminate the Johnson Amendment in their forthcoming tax reform plan. For now, though, there is still time for nonprofits to make our voices heard with our members of Congress about why any of these proposals would hurt nonprofits and the communities we serve. Here are two things you can do today:
1. Join more than 4,500 other nonprofits from around the country by signing the Community Letter in Support of Nonpartisanship. Nearly 400 North Carolina nonprofits (by far the most of any state!) are already on this letter. We’ve already shared the letter with every member of North Carolina’s congressional delegation, but we would love to give them an updated version with an even stronger showing of support from the nonprofit community.
2. Call Senator Richard Burr (R-NC), Senator Thom Tillis (R-NC), and your U.S. House member to tell them to preserve the current law that protects charitable nonprofits. It’s best to use your own words and explain why this would harm your nonprofit and their constituents.
As our members of Congress hear from more and more trusted nonprofits in their communities (that would be you!) with strong concerns about legislation to repeal or weaken the Johnson Amendment, they will be more likely to work to protect nonprofit nonpartisanship.
David Heinen is the Center’s Vice President for Public Policy and Advocacy.