SECTION 5201 EXEMPTS HOUSES OF WORSHIP FROM THE JOHNSON AMENDMENT

Section 5201 allows houses of worship to endorse candidates so long the endorsement is made during a religious service or gathering, is made in the ordinary course of their tax-exempt purpose, and does not incur more than a de minimis incremental expense. This would, in effect, exempt houses of worship from the Johnson Amendment.

The impact of even just one endorsement from a house of worship would be powerful and could have a significant impact on an election, but this provision permits far more than merely a lone statement of support. Section 5201, for example, would allow:

A pastor to preach a sermon endorsing one or more candidates. His church could then post a video of that sermon on its website, email it to parishioners, and distribute it publicly on social media.

A Rabbi to endorse a candidate during the welcoming message provided to those attending her synagogue’s community service event.

A church that is motivated by faith to provide social services to the public to tell each and every person who attends its meetings to vote for a particular candidate.

If such activities were allowed, the Johnson Amendment would be rendered meaningless as applied to houses of worship. The very purpose of the Johnson Amendment–to prevent government subsidized partisan campaign activity–would be allowed in every church and house of worship across the country.

SECTION 5201 WOULD REQUIRE THE IRS TO LOOK INTO THE INTERNAL WORKINGS OF HOUSES OF WORSHIP AND MAKE POLITICAL JUDGMENTS

The Johnson Amendment includes a clear rule: tax-exempt organizations, including houses of worship, cannot endorse candidates. This bill includes a vague and undefined test that is subject to IRS discretion. Enforcing the law would entangle the IRS in internal church governance and require it to make judgments about religion.

Section 5201 calls on the IRS to determine whether an endorsement (1) occurred during the “ordinary course” of the organization’s “regular and customary activities” in carrying out its “tax-exempt purpose;” (2) whether it amounted to a “de minimis incremental expense,” and (3) whether it took place during “religious services or gatherings.” To determine whether the cost of any endorsement was a “de minimis incremental expense,” the IRS would, not only have to define de minimis, but also have to investigate the house of worship’s books. And to determine whether the endorsement was part of the “regular and customary activities,” the IRS would have to examine the institution’s history of activities. The IRS would also have to judge whether an event is “religious” or not and whether the activity serves the organization’s “exempt purpose.” By inviting that type of scrutiny of church documents and activities, and judgments about religion, this bill actually threatens, rather than upholds, the autonomy and independence of houses of worship.

EXEMPTING ONLY HOUSES OF WORSHIP FROM THE JOHNSON AMENDMENT WOULD VIOLATE THE CONSTITUTION

Under the religious freedom protections provided by the First Amendment to the U.S. Constitution, the government cannot prefer or favor religion or non-religion. The Johnson Amendment applies to all 501(c)(3) tax-exempt organizations, yet Section 5201 exempts only houses of worship from the restrictions of the Johnson Amendment. This special treatment raises serious concerns under the Establishment Clause of the First Amendment and undermines religious freedom.

CONCLUSION

For all the above reasons, we urge you to oppose the language effectively repealing the Johnson Amendment for houses of worship.

Sincerely,

Maggie Garrett,

Legislative Director, Americans United for Separation of Church and State.  

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(Congressional Record – Tax Cuts And Jobs Act Part 1)

(Congressional Record – Tax Cuts And Jobs Act Part 2)

(Congressional Record – Tax Cuts And Jobs Act Part 3)

(Congressional Record – Tax Cuts And Jobs Act Part 4)

(Congressional Record – Tax Cuts And Jobs Act Part 5)

(Congressional Record – Tax Cuts And Jobs Act Part 6)

(Congressional Record – Tax Cuts And Jobs Act Part 7)

(Congressional Record – Tax Cuts And Jobs Act Part 8)

(Congressional Record – Tax Cuts And Jobs Act Part 9)

(Congressional Record – Tax Cuts And Jobs Act Part 10)

(Congressional Record – Tax Cuts And Jobs Act Part 11)

(Congressional Record – Tax Cuts And Jobs Act Part 12)

(Congressional Record – Tax Cuts And Jobs Act Part 13)