IRS Proposal to Allow Political Speech in Churches Is Bad Advice

It is rare to see a government agency surrender its regulatory mandate not through legislative or regulatory amendment but by way of a linguistic sleight of hand.

The IRS did just that last week. In a proposed consent decree filed in a federal district court in Texas, the IRS asserted that when clergy communicate about electoral politics with their congregations in religious services, it’s not electioneering in violation of longstanding federal law. Instead, it should be viewed as just a “family discussion.”

This is not only an unorthodox legal maneuver; it’s bad advice for houses of worship.

To be clear, the provision in our tax code often referred to as the Johnson Amendment is still good law. For nearly seven decades, that provision has barred nonprofit 501(c)(3) organizations, including houses of worship, from engaging in political campaign activity while benefiting from the most favored tax-exempt status.

But in this case, the IRS is taking the position that the Johnson Amendment doesn’t mean what it says—or at least doesn’t mean what is perfectly reasonable and has long been understood to mean.

The IRS’s change in position comes in the context of a lawsuit brought by two churches and the National Religious Broadcasters. The plaintiffs sought to have the law invalidated, alleging that prohibiting them from endorsing candidates violates their rights under the First and Fifth Amendments, as well as the Religious Freedom Restoration Act.

Rather than defend decades of established law and policy, the IRS folded and did so in a harmful way by suggesting that a church’s political endorsement doesn’t constitute campaign intervention.

Specifically, the parties submit: “When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign’ within the ordinary meaning of those words.” They conclude that such communication therefore doesn’t run afoul of the Johnson Amendment.

But endorsing a candidate from the pulpit isn’t an act of familial intimacy. Customary channels of communication for many churches include radio, television, and livestream broadcasts. Among the plaintiffs to the lawsuit is in fact the National Religious Broadcasters, which would like to broadcast its endorsements of candidates.

The special treatment and assumption about conversations with congregations isn’t easy to understand or justify as distinct from other activities of intervening or participating in a political campaign, which the statutory provision explicitly prohibits—and which longstanding IRS guidance for churches has described as an absolute ban.

The proposed consent judgment, even if approved by the judge, will have no binding effect beyond the parties to the lawsuit and doesn’t constrain the IRS in future actions relating to the statute. Nevertheless, it is a troubling development that could have serious and harmful consequences for churches and our democracy.

In light of this, the Baptist Joint Committee for Religious Liberty (BJC) has urged churches to exercise caution.

For decades, a few advocacy groups and members of Congress have proposed abolishing the Johnson Amendment or limiting its reach under the banner of “freeing pulpits” or “restoring speech.”

Typically, these efforts ignore the commonsense meaning of the law and the important purposes it serves by avoiding turning charitable organizations into partisan campaign organizations. Instead, they are usually fueled by the exaggerated and inconsistent arguments that pastors are being muzzled, and the IRS is failing to enforce the law (or at least against “the other” side). But such efforts have failed and should continue to be rejected.

The Johnson Amendment protects the integrity of the nonprofit sector. It applies to organizations that receive the most favorable tax treatment—those that receive tax-deductible donations, including houses of worship.

Such organizations certainly have free speech rights and a wide berth for influence in public debate. It makes sense that such organizations dedicated to charitable, educational, or religious purposes are prohibited from being used to promote partisan campaigns.

It is a safeguard that ensures churches and other nonprofit organizations aren’t conscripted into partisan warfare or transformed into laundering operations for campaign finance. And importantly, polls show that overwhelming majorities of pastors and parishioners alike reject pulpit endorsements.

Unfortunately, if the IRS’s recent litigation position sticks, we can expect to see more political operatives prowling the pews, more congregations fractured by party lines, and more threats of charitable donations misdirected into the coffers of political campaigns.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Holly Hollman is general counsel and associate executive director of Baptist Joint Committee for Religious Liberty.

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