In a letter to Congress dated February 7, 2018 (“Letter”), 145 faith-based and secular organizations raised hue and cry against the inclusion of Section 116 of House Bill H.R. 3280 within the proposed federal appropriations bill for 2018 (now incorporated into 115 H.R. 3354). Section 116 does not directly repeal the Johnson Amendment’s prohibition on political campaign involvement by churches and other Section 501(c)(3) organizations. Rather, it provides stringent measures to protect against overzealous governmental interference with constitutionally protected houses of worship, effectively preventing the IRS from revoking churches’ tax-exempt status for partisan communications during election seasons.
If Section 116 becomes law, any proposed revocation of a church’s tax exemption for political campaign activity would require the IRS Commissioner’s consent, notice of a revocation to two separate Congressional committees, and a grace period before making a revocation effective. The Letter’s authors take offense to these measures, characterizing them as an “attempt to weaken or repeal the Johnson Amendment,” which in turn would politicize churches, divide congregations, and “[open] them up to the flow of secret money.” In other words, if the IRS cannot more efficiently do its job to guard against church involvement in political campaign activity, that spells trouble for churches! But on balance, these procedures present a far cry from such alarmist assertions that Section 116 would tear apart houses of worship. Rather, they are consistent with current law requiring high-level IRS approval for church inquiries, and therefore simply set forth a framework for governmental accountability without additionally onerous restrictions on compliance measures.
This is not to say that churches should endorse candidates or otherwise involve themselves in electoral politics, apart from any tax-related legal requirements. But whether a church would choose to do so or not do so, absent the Johnson Amendment, becomes properly a theological question, not a political one. In other words, it may very well be that it is theologically problematic or unwise from an ecclesial standpoint. But the government should not make such prudential determinations.
The primary fallacy in the Letter is the assumption that churches need to rely on the government to save them from too much politics. Fundamentally, the Letter’s authors misplace their focus as follows.
Assumption 1. Houses of worship enjoy tax-exempt status as a matter of special legislative grace because it pleases the government to suffer their activities, not for other legitimate reasons such as avoidance of government involvement with religion or special deference for religious liberty within our country’s constitutional framework.
Assumption 2. Religious institutions lack the ability to regulate themselves or each other when it comes to politics, so they require the government to protect their “integrity.” Churches are unable to safeguard themselves from power-hungry “politicians and others seeking political power.” So without the Johnson Amendment, churches will succumb to political pressure “for endorsements, dividing congregations, and opening them up to the flow of secret money.” Ultimately, they will be “torn apart by partisan campaign politics.”
Assumption 3. Allowing houses of worship of any and every religion to make theological determinations on the appropriateness of political endorsements amounts to the government establishing a religion, arising from the government’s allowance for tax-exempt status or the charitable deduction.
These assumptions are inherently flawed and intensely problematic. Here’s why.
Tax Policy, Regulation, and Constitutionality
Churches are not creatures of the state.
First, houses of worship enjoy tax-exempt status for a number of reasons. See “The Gift of Religious Tax Exemptions, On Balance,” Dec. 19, 2017. But none of those reasons assume that the government, in its benevolent generosity, has graciously decided to categorically subsidize these organizations through tax-exempt status. Rather, religious traditions existed before the government, not to mention the IRS. And they will exist long after the government and the IRS. In short, religions are not creatures of the state, and the houses of worship that play a vital role in the free exercise of such religions are independent pre-political institutions. To hold that such revered institutions are beholden to the government to protect their integrity assumes too much. These religious institutions have carried forward for thousands of years through the rise and fall of many governments. When history repeats itself, they’ll outlive our current political state.
Section 501(c)(3), as it applies to houses of worship, merely recognizes this fact. The United States was founded on the fundamental principle that human beings should be free to seek after life’s most compelling and foundational truths free from untoward burdens imposed by secular authorities—not least by the mechanism of government taxation. In fact, a key aspect of our country’s pluralistic civil society is its robust and diverse religious and nonprofit sector. It is in this sector where houses of worship from a variety of religious traditions have been able to act in innovative, effective, and efficient ways, apart from government or when it falters. These religious institutions provide idiosyncratic solutions to temporal and spiritual problems. Such diversity of non-governmental solutions provided by this sector should be celebrated and protected in a pluralistic society.
Churches can protect themselves from political dangers.
That leads to the second point. The Johnson Amendment imposes certain restrictions concerning involvement in electoral politics on all Section 501(c)(3) organizations, including churches—and would remain current law, even if Section 116 were to be adopted. But the issue here is not whether the Johnson Amendment is a good idea, or whether churches should be allowed to comment on political issues. Rather, the issue is the flawed assumption that houses of worship need the IRS to police their sanctuaries and synagogues and safeguard these fragile ecosystems of faith from partisan politics and secret money.
If a church makes an unwise decision on theological grounds, political or not, it is up to the faithful to hold it accountable and correct the error. The government is ill-equipped to handle such questions.
Churches enjoy deference as a constitutional matter for the good of all.
At issue is the question of whether the government can or should be involved in policing the intersection of faith and politics in a way that enables the government to arrogate power unto itself at the expense of, but “for the good of,” the church. In reality, the government is legally prevented from addressing such issues. The First Amendment accounts for various theological traditions’ understandings of what it means to live out one’s faith and worship freely without the government’s permission. It protects the principle of deference to a sphere of authority and activity outside the government’s purview. From one perspective, it is a helpful reminder of the limits of governmental authority and efficacy. From another perspective, it is a way of ensuring deep structural commitments essential to preserving a healthy pluralistic and liberal society.
Additionally, it is important to remember that the Johnson Amendment to Section 501(c)(3) was a legislative provision enacted in the 1950s. Section 501(c)(3) was not unconstitutional before the political campaign prohibition’s enactment, and nor would it be if Congress repealed or modified such prohibition in whole or in part. The Letter’s authors misconstrue the Establishment Clause concerns. Scaling back the Johnson Amendment’s legislative restrictions on all houses of worship would affect all equally, and would not raise one theological tradition over another—or establish a state-sponsored church or religion.
As set forth above, churches are not creatures of the state, existing by the pleasure or subsidy of the state. The Letter’s authors seem to assume that the freedom to worship and act consistently with deeply held beliefs without a governmental pass is more of a violation of the First Amendment than a requirement for the government to approve orthodoxy and doctrine. The position of the Letter’s authors ironically implies a demand for greater entanglement rather than less. The authors’ true focus appears to be on keeping churches out of politics more than keeping politics out of churches, whatever they may state explicitly.
There are good reasons for churches, in most situations, to avoid participating in political campaigns, even without considering the current tax-related prohibition courtesy of the Johnson Amendment. During pivotal times in our country’s history, such as before and during the Revolutionary War and in connection with efforts to end slavery, churches were outspoken in the political sphere. Sometimes the positions were right, and sometimes they were wrong. But of fundamental importance is that there was a safe space for such dialogue to occur, not only for the sake of pluralism, but also out of deference to activity in the religious sphere. Respect for our country’s religious institutions warrants extremely careful protections against potential government intervention. Such intentional restraint applies equally to the IRS’ power to revoke churches’ tax-exempt status.
 More specifically, this proposed Section 116 provides as follows:
None of the funds made available by this Act may be used by the Internal Revenue Service to make a determination that a church, an integrated auxiliary of a church, or a convention or association of churches is not exempt from taxation for participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office unless—
(1) the Commissioner of Internal Revenue consents to such determination;
(2) not later than 30 days after such determination, the Commissioner notifies the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate of such determination; and
(3) such determination is effective with respect to the church, integrated auxiliary of a church, or convention or association of churches not earlier than 90 days after the date of the notification under paragraph (2).