In 1954, Texas Sen. Lyndon Johnson proposed an amendment to the Internal Revenue Code that has strangled the free speech and religious liberty of churches and the pastors who lead them ever since.
The so-called Johnson Amendment, passed simply by voice vote in the Senate, prevents tax-exempt organizations from participating or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office.” To this day, the IRS judges what constitutes prohibited political activity based “on the facts and circumstances.” Hardly an objective standard.
The Washington Post, the day after its passage, published an article on its front page describing the amendment as one that “would withdraw tax-free status from any foundations or other organizations that attempt to ‘influence legislation’ or dabble in politics on behalf of any candidate for public office.”
While the legislation seemed innocent enough, Johnson’s motivations may have been less than pure. In the midst of his primary election, Johnson introduced his now-infamous amendment targeting the two organizations that posed the greatest pososible threat to his reelection: Facts Forum and the Committee for Constitutional Government. Both tax-exempt organizations widely distributed content running counter to LBJ’s political philosophy. Following passage of the amendment, they backed away from anything resembling direct opposition to Johnson. His political payback gambit worked.
But the Texas politician wasn’t entirely against tax-exempt organizations. He seemed to appreciate them best when they boosted his political aspirations. During the 1954 primary race, as the challenges to his political philosophy continued to mount, the Rev. Lewis L. Shoptaw, a protestant minister, sent a letter to 6,500 protestant clergy during the primary election stating, “I do not think that under ordinary circumstances any Minister of the Gospel should take part in any political campaign, but I feel compelled to do this because I think you feel as I do, that we must always be alert and vigilant.” If that were not enough, he went on to call upon the pastors to be alert to “a campaign being waged against our fine Texas Senator Lyndon B. Johnson.”
Johnson’s amendment lay fallow for the better part of the 20th century. In fact, we have records of just two churches ever having had their tax exemption revoked by the IRS since its passage. Yet, the collateral damage of his 31-word amendment extends well beyond any actual loss of tax exemption. It has greatly distorted the protections of the First Amendment.
Though helpful to Johnson’s political future, the Johnson Amendment succeeded in suppressing the free speech of pastors and churches, who, in speaking of their faith and teaching it to their congregants, often address topics that some view as political.
Take, for instance, New Way Church in Palm Coast, Florida. When a candidate for school board showed up at New Way, the church’s pastor invited her to the stage where she shared her background and why she chose to run for office. When she finished, the pastor invited the church to do what churches do best: pray. With the pastor leading, the church prayed for the candidate and went on with the service.
Two years later, the Biden IRS announced it was investigating the church for a possible violation of the Johnson Amendment. In the eyes of the IRS, praying for a candidate could jeopardize the church’s tax exemption! Thankfully, after First Liberty pushed back, the IRS closed the investigation and affirmed the church’s ability to pray for political candidates.
Still, First Amendment rights don’t end when a pastor, church member, or even a political candidate steps on the platform of a church. The Johnson Amendment violates this nation’s historic respect for the independence of its houses of worship by inviting the IRS to investigate churches for political advantage.
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Thankfully, Sen. James Lankford (R-OK) and Rep. Mark Harris (R-NC) are trying to restore this nation’s commitment to protecting our houses of worship and the religious liberty of its leaders. Their bill, the Free Speech Fairness Act, corrects the unconstitutional amendment embedded in the Internal Revenue Code for the last 71 years.
Pastors and churches should not fear reprisals by the IRS when they educate their members about biblical issues affecting culture, pray for candidates, or urge their members to be responsible citizens and vote. In a country committed as it is to free speech and religious liberty, the Johnson Amendment has overstayed its welcome. Churches, and the pastors who lead them, would take great comfort in its repeal.
Jeremy Dys is senior counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.