In a minor win for Democrats, the final GOP tax bill will not include a repeal of the Johnson Amendment, a change that would have allowed religious institutions and all nonprofit entities organized as 501(c)3s to endorse political candidates.
“I'm pleased to announced that Democrats successfully prevented the repeal of the Johnson Amendment from being jammed into any final Republican tax deal,” said Sen. Ron Wyden (Ore.), the top Democrat on the Senate Finance Committee. He added that he would “continue to fight all attempts to eliminate this critical provision.”
Democrats knew they would have little leverage to influence the final Republican tax bill because it was passed entirely with GOP votes in both the House and Senate. Republicans are using a process known as reconciliation to pass the tax bill, which only requires a simple majority in both chambers. But senior Democratic leaders in the Senate had one final card to play: They could challenge any part of the tax bill not actually having to do with taxes.
It is formally known as a “Byrd Rule” challenge. The Senate parliamentarian has the final say on what parts of the bill meet the Byrd Rule and which do not. Democrats were already successful in kicking out a provision in an earlier version of the Senate tax bill that would have allowed parents to start tax-preferred college savings accounts (known as 529 plans) for fetuses.
Some Republicans expressed frustration that the Johnson Amendment "fix" wasn't allowed in the final bill.
"I'm disappointed in the decision of the parliamentarian to not allow the revised text of the Johnson Amendment into the tax reform bill," said Sen. James Lankford (R-Okla.) "The federal government and the IRS should never have the ability, through our tax code, to limit free speech."
The Johnson Amendment has been in place since 1954 and is widely seen as a way to separate church and state in modern American life. Religious leaders are not supposed to give sermons endorsing specific candidates ahead of elections. Churches, synagogues, mosques and other nonprofit institutions are also prohibited from raising money for political candidates. If nonprofits or religious institutions want to engage in explicit support of a candidate, they have to give up their 501(c)3 tax-exempt status.
There were concerns that a repeal would create a new dark-money channel for powerful donors to quietly funnel funds to political candidates. Under the House plan, both the Clinton Foundation and Trump Foundation would be able to openly get involved in U.S. political campaigns, for example.
"Nonprofits are allowed to lobby Congress or their local elected officials, but the ambiguity of the current tax code keeps non-profits in constant fear that they might have crossed a line that no other organization has to consider," said Senator Lankford. He argued the repeal language that Republicans crafted would still have prohibited any campaign financing via non-profits.
But the Joint Committee on Taxation, Congress's official scorekeeper, estimated that the repeal of the Johnson Amendment would cost the government about $2 billion as the rich donated more money to religious institutions and nonprofits and got tax write-offs for doing so.