Should the Johnson Amendment Be Repealed? Implications for the Jewish Community

By Steven Windmueller, Ph.D.

This past week at the National Prayer Breakfast, President Donald Trump indicated his desire to abandon the Johnson Amendment (1954) for America’s religious institutions. It should be noted that this amendment was crafted to apply to all nonprofit organizations:

The amendment affects nonprofit organizations with 501(c)(3) tax exemptions, which are subject to absolute prohibitions on engaging in political activities or risk the loss of their tax-exempt status if violated. Specifically, they are prohibited from participating in political campaign activities. The Johnson Amendment applies to any 501(c)(3) organization, not just religious 501(c)(3) organizations.

This proposal was previously introduced during the campaign and would become part of the 2016 Republican Party Platform. Candidate Trump would argue:

Among those freedoms is the right to worship according to our own beliefs. That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution,” Trump said. “I will do that, remember.”

Indeed, there are many within the religious establishment who are arguing the merits of repealing the Johnson Amendment. Here is one such argument:

It would allow churches and pastors to be explicit about their views, informed by their religious beliefs, on a variety of political topics, including specific candidates and elections. Some organizations, such as the Alliance Defending Freedom (with its “Pulpit Freedom Sunday”), see that, as an important right churches should be able to exercise without limitation or penalty.

But Questions Remain:

Various concerns have been raised in connection with this proposal; five of these issues are introduced below:

  • Some have suggested that religious organizations could become conduits for passing through political contributions, operating as political action committees, supporting particular candidates and various legislative initiatives.
  • As some legal analysts have noted, certain clergy persons have for years simply disregarded this regulation, electing to endorse candidates from the pulpit and using their religious standing to galvanize support for political causes, without being penalized by the IRS. Only on a few occasions has the government come down on the religious sector around such violations. Will changing the legal standard actually accelerate or increase the involvement of clergy and the religious establishment in expanding their political activism?
  • Would the rollback only apply to religious institutions? What about the nonprofit sector as a whole, would it also be exempt from political endorsements and other political actions that today are prohibited by the IRS?
  • Would many churches, synagogues or other religious organizations actually take advantage of this option, in light of the political divisions within their own membership base?
  • Other components of the tax code have implications for the nonprofit community as well: The Johnson Amendment isn’t the only bit of the tax code that penalizes charities for participating in elections. There are currently excise taxes on the books that impose huge financial penalties not only on a charity that intervenes in elections, but on the individual manager who directs the intervention.

Certainly, there is a significant cohort of American public figures who are seeking to preserve the “wall” of separation between church and state as a core value of this democracy. Some have argued that as “private” citizens religious figures can and do exercise their moral authority and individual rights without involving their congregations in the battlefields of American politics.

Already at this point one can find on line intensive debates by Constitutional scholars, journalists, religious leaders and others over the benefits, consequences and outcomes associated with this proposal.

How Others See this Issue:

It is important to see how various political voices view this proposal. Steven Mosher, writing for Breitbart News, offers the following commentary in support of this initiative:

The amendment has been used as a club to beat Christians into silence ever since. This gag rule has robbed priests and pastors of their freedom of speech, causing many to retreat into a kind of studied vagueness, if not complete silence, where the great moral issues of our day is concerned. If a religious leader is forbidden to talk about the morality or immorality of political candidates and their positions, then he is not able to help his congregation understand how to put their faith into action.”

Emma Green, writing in the Atlantic, offered an opposing position:

If the Johnson Amendment were repealed, pastors would be able to endorse candidates from the pulpit, which they’re currently not allowed to do by law. But it’s also true that a lot more money could possibly flow into politics via donations to churches and other religious organizations. That could mean religious groups would become much more powerful political forces in American politics – and it would almost certainly tee up future court battles.”

Implications for the Jewish Community:

The major institutions of the Jewish community will need to weigh-in on this Constitutional issue and the related question of what ought to be the role and relationship of religious institutions to American democracy?

While still limited in volume, the initial reactions reflect serious concerns over changing the status quo:

The American Jewish Committee’s Associate Executive Director, Jason Isaacson offered the following observation:

Congress should resist this effort to fix what is not broken. America has a vibrant civil society, in which every point of view on political issues large and small has opportunities for expression.”

Rabbi Jack Moline, President of the Interfaith Alliance, commenting on the Trump proposal, noted that it

Would undermine religious freedom by plunging houses of worship into partisan politics and inviting the rewards and punishments of patronage. We strongly urge Congress to oppose the effort to undermine the Johnson amendment, which has nothing to do with religious freedom and everything to do with grabbing power for the Religious Right.”

A Forward commentary provided a similar theme:

President Donald Trump and Mike Pence intend to demolish the entire crumbling wall between church and state.”

Summary Notes:

As with so many issues being introduced by the new Administration, this issue will no doubt have a major impact on the role of religion in American culture and politics, and more directly has specific implications for America’s Jews. By politicizing the American synagogue, would such a proposal not only change its legal status but also undermine its historic standing and core functions?

Steven Windmueller Ph.D., on behalf of the Wind Group,
Consulting for the Jewish Future