Since 1954, a provision in the U.S. Tax Code, commonly referred to as the Johnson Amendment, has effectively censored all nonprofit organizations and their leaders with the threat of an IRS investigation, fines or loss of tax-exempt status if they choose to discuss political events. Introduced by then-Sen. Lyndon B. Johnson, the amendment was snuck in by voice vote but was never debated by Congress. As a result of the Johnson Amendment, people who work at nonprofits, charities and houses of worship have major restrictions on their freedom of speech.
Simply put, employees of 501(c)(3) nonprofit entities, including churches, should not live under a shadow of fear when voicing their beliefs. They should not incur a financial penalty for expressing their political opinions. President Trump concurred during his recent speech at the National Prayer Breakfast. As advocates for the protection of freedom for all, we’ve introduced the Free Speech Fairness Act, to amend the Johnson Amendment, not repeal it, and reinstate the rights of anyone who wishes to communicate their political viewpoint.
Specifically, our legislation would ensure that all 501(c)(3) organizations, including nonprofits, charities and houses of worship, are legally able to make comments about a political issue within the scope of their normal activities. An environmental nonprofit that sends out an e-newsletter educating its readers about the climate positions of candidates wouldn’t have to fear an audit. A church employee who distributes election voter guides (for which her church did not incur any cost for distribution) could not be punished by the IRS.
The bill also requires that any expenditure related to these activities are de minimis — that is, only minimal and not outside the usual expenses of the organization — to ensure that the organization’s primary function remains charitable or religious in nature. Our legislation would not turn nonprofits and churches into political action committees, as some have claimed. While our legislation is specifically drafted to maintain the prohibition against 501(c)(3) organizations contributing money to candidates or campaigns — that way taxpayers aren’t funding them — we also drafted it to stop the IRS from censoring their free-speech rights.
The criticism that our legislation would subsidize religious organizations’ politics demonstrates a double standard for faith-based entities. Leaders and employees of other entities that receive federal funding — such as hospitals and universities — are welcome to advocate for political causes and contribute to them. The IRS does not threaten to punish them when they engage in political speech. Critics who say this blurs the line between church and state misunderstand the principle. Thomas Jefferson’s “separation” coinage doesn’t mean that there is a wall of separation between the two; it just means that the state should not have control over the church, nor shall the church maintain control over the state.
The First Amendment right of free speech and right to practice any faith, or no faith, are foundational American values that must extend to everyone, no matter if they’re a Jewish rabbi, a Buddhist monk, a Baptist pastor or a Muslim imam. Some bristle at the thought of their faith leader or pastor speaking about politics from the pulpit. We fully understand that concern, but that’s a conversation for each individual congregation to have. Likewise, the donor market will shape nonprofit demand on its own as well. If an employee of a nonprofit organization voices political opinion against the wishes of donors, the employee or nonprofit can restrict that speech according to donor demand. Individuals can express their objection to what they may deem as political speech; that is freedom at its best. But the government shouldn’t have the authority to sanction or stifle speech.
Since its passage, the Johnson Amendment has been inconsistently enforced, causing many 501(c)(3) entities to be left in limbo, or even worse, in fear. This puts the IRS in the position of monitoring the speech of nonprofits and houses of worship. For example, the IRS revoked the tax-exempt status of a nonprofit group called Branch Ministries in 1995 after it placed a newspaper ad about the candidacy of President Bill Clinton. In 2004, the IRS investigated the NAACP for remarks made by former chairman Julian Bond about the presidency of George W. Bush. In 2007, a sermon given at All Saints Church in Pasadena, Calif., was deemed illegal by the IRS because it included remarks that were critical of Bush before the 2004 election.
Nonprofit organizations and houses of worship had the freedom to speak for the first nearly 200 years of U.S. history. They exercised that right responsibly, and churches were not turned into arms of political parties. We should return to that principle of free speech for all. Every American should be able to speak freely about their conscience and convictions, no matter what their job is. If you agree with that simple statement, we welcome your support of the Free Speech Fairness Act. We are proud to be a part of this effort to ensure that all people are treated equally and fairly under the law for their right to speak freely.
James Lankford represents Oklahoma in the U.S. Senate. Steve Scalise represents Louisiana’s First Congressional District in the U.S. Congress. Jody Hice represents Georgia’s 10th Congressional District in the U.S. Congress. All are Republicans. They wrote this article for the Washington Post.