Trump claims that he “got rid” of the amendment and that religious organizations are now free to espouse political views in the public arena. But the Johnson Amendment is still on the books, despite Trump’s repeated claims to the contrary and his 2016 campaign promises to some evangelical groups that want to see it repealed.
Trump signed an executive order in May 2017 with the stated purpose of giving more leeway to religious groups in the realm of political speech. In practice, though, the executive order does not ease the Johnson Amendment’s restrictions, as the Justice Department later stated in court.
Section 501(c)3 of the U.S. tax code grants tax-exempt status to nonprofit groups such as charities, universities and religious organizations. But these tax-exempt groups “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office,” according to the Internal Revenue Service.
“Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity,” the IRS advises. “Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.”
Despite these stark warnings, the prohibition is seldom enforced by the IRS and is widely disregarded by clergy. Moreover, the leaders of 501(c)3 organizations remain free to support or oppose candidates in their personal capacities. They also are allowed to speak about political issues on behalf of their organizations, short of endorsing or opposing particular candidates for office.
Johnson, a Texas Democrat, was the Senate minority leader in 1954 when he proposed this restriction. It was approved without committee hearings or debate under a Republican majority and signed into law by President Dwight D. Eisenhower, a Republican. When Republican President Ronald Reagan overhauled the U.S. tax code in 1986, he and Congress kept the Johnson Amendment.
When Johnson introduced the amendment on the Senate floor, he said the goal was to deny “tax-exempt status to not only those people who influence legislation but also to those who intervene in any political campaign on behalf of any candidate for any public office.”
Here’s the language of Section 501(c)3, with Johnson’s amendment in bold:
Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
Let’s zoom ahead a few decades. Trump, Vice President Pence and ideologically aligned groups including the National Religious Broadcasters, the Christian Coalition of America and the Family Research Council have been pushing for an end to the ban on supporting or opposing candidates.
During Trump’s first two years in office, the Republican-controlled Congress made several attempts to weaken or repeal the Johnson Amendment, though none succeeded.
On May 4, 2017, Trump signed an executive order that says in part:
In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury. As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.
In other words, the executive order says the Treasury Department should not treat speech “about moral or political issues from a religious perspective” as a sign of support for or opposition to a candidate if similar language, in the past, has not ordinarily been treated that way.
As we highlighted in bold above, Trump also included constraints (“to the extent permitted by law,” “consistent with law”) that seem to rule out any effort to use the executive order to circumvent the Johnson Amendment’s prohibition. In any case, executive orders cannot overwrite the laws passed by Congress.
In a civil complaint filed in June, then-Attorney General Barbara D. Underwood of New York charged that the now-defunct Donald J. Trump Foundation had violated the Johnson Amendment’s prohibition on supporting candidates for office.
Trump’s presidential campaign “extensively directed and coordinated the Foundation’s activities in connection with a nationally televised charity fundraiser for the Foundation in Des Moines, Iowa on January 28, 2016,” Underwood charged. The fundraiser was billed as an effort to “raise funds for veterans’ organizations,” but the Trump campaign commandeered nearly $2.8 million in donations and “dictated the manner in which the Foundation would disburse those proceeds, directing the timing, amounts and recipients of the grants.”
“In addition, in February 2016, while on the campaign trail, Mr. Trump spoke out against the prohibition on charities participating in political campaigns,” Underwood added, referring to Trump’s comments at a campaign stop in South Carolina, in which he said: “They’re willing to take your tax exemption and tax status away from you if you talk. That happened during Lyndon Johnson’s reign and I would put that back so fast ... we’re going to get rid of that.”
We asked the Treasury Department and the White House how the executive order has worked in practice and whether any religious organization has invoked its provisions to support or oppose candidates without running afoul of the IRS. We didn’t get a response.
But in an August 2017 legal filing, the Justice Department said Trump’s executive order did not lift restrictions on religious organizations.
“The Order does not exempt religious organizations from the restrictions on political campaign activity applicable to all tax-exempt organizations,” the filing read. “Rather, the order directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of these restrictions.”
Yet Trump keeps saying the Johnson Amendment is a thing of the past.
July 12, 2017: “The evangelicals were so great to me. ... They came out in record numbers. They never came out like that. And we’ve really helped. Because I’ve gotten rid of the Johnson Amendment. Now we’re going to go try and get rid of it permanently in Congress. But I signed an executive order so that now, people like you — that I want to hear from — ministers and preachers and rabbis and whoever it may be, they can speak. You couldn’t speak politically before. Now you can.”
In this variation, Trump claims he got rid of the Johnson Amendment, then quickly walks back that statement by adding that he was trying to make the change permanent in Congress. The president also claimed that ministers, preachers and rabbis “couldn’t speak politically before,” but they could. The First Amendment guaranteed free speech and freedom of religion long before the executive order on May 4, 2017.
Oct. 13, 2017: “Among many historic steps, the executive order followed through on one of my most important campaign promises to so many of you: to prevent the horrendous Johnson Amendment from interfering with your First Amendment rights. Thank you. We will not allow government workers to censor sermons or target our pastors or our ministers or rabbis. These are the people we want to hear from, and they’re not going to be silenced any longer.”
In this variation, Trump claims the Johnson Amendment was “interfering with your First Amendment rights” — whatever that means — until his executive order came along. But it didn’t change anything in practice.
Dec. 8, 2017: “We are protecting religious liberty, and we’re getting rid of the Johnson Amendment.”
May 3, 2018: “Last year on this day, I took executive action to prevent the Johnson Amendment — a disaster — from interfering with our First Amendment rights.”
Aug. 1, 2018: “Well, one of the big things we’ve done is the Johnson Amendment. You know, you’re free to do what you want to do now. You couldn’t — you couldn’t talk because you were afraid of a lot of bad repercussion. And we — as you know, we’ve taken that off. That’s a bad — that was a bad thing. That was a bad thing that Lyndon Johnson did a long time ago. He had to have a lot of power to get it done, but you now are free to say what you want.”
Aug. 27, 2018: “In the last 18 months alone, we have stopped the Johnson Amendment from interfering with your First Amendment rights. A big deal. It’s a big deal.”
Oct. 31, 2018: “Nobody has done more for Christians, or evangelicals, or, frankly, religion than I have. You see all the things that we’ve passed, including the Johnson Amendment, and so many things that we’ve nullified.”
In this grandiose variation, Trump claims he “nullified” the Johnson Amendment. But his executive order doesn’t do that.
May 2, 2019: “One of the things I am most proud of is the Johnson Amendment. You can now speak your mind and speak it freely. I said I was going to do that. … They took away your voice politically and these are the people I want to listen to politically but you weren’t allowed to speak. They would lose their tax-exempt status. That’s not happening anymore so we got rid of the Johnson Amendment. That’s a big thing.”
Trump regularly receives applause when he makes these claims, as he did on May 2 during a National Day of Prayer service at the White House. But these boasts aside, evangelical groups continue to press for a repeal of the Johnson Amendment.
The Washington Post reported in 2017 that many religious freedom advocates were actually disappointed with Trump’s executive order. Douglas Laycock, a professor at University of Virginia Law School and an expert on religious freedom, said at the time that the order suggests churches should not be found guilty of implied endorsements where secular organizations would not be. Laycock had not heard stories of that happening but added that “the IRS does jawbone churches in a way that it does not appear to jawbone secular nonprofits. Maybe that’s what it’s supposed to be about.”
Although it has some detractors on the right, the Johnson Amendment also enjoys broad support from thousands of nonprofits, charities and religious groups covered by Section 501(c)3. An August 2018 poll by the Associated Press and NORC Center for Public Affairs Research found that 13 percent of Americans supported “allowing religious leaders to endorse candidates while retaining their tax-exempt status,” while 53 percent were opposed and 33 percent did not express a view.
“Nonpartisanship is vital to the work of charitable nonprofits,” said Tim Delaney, president of the National Council of Nonprofits. “It enables organizations to address community challenges, and invites the problem-solving skills of all residents, without the distractions of party labels and the divisive partisan politics that currently bedevil our country ... something that wouldn’t be possible if the long-standing Johnson Amendment is weakened in any way.”
The Pinocchio Test
Trump says he got rid of the Johnson Amendment. It’s still on the books.
The president sometimes implies that he got rid of the amendment with an executive order. Nope.
He claims that religious leaders were being silenced before his executive order. Not quite. They were prohibited from supporting or endorsing political candidates in their official capacities, and continue to be barred from doing so as a condition of their tax-exempt status.
This is a campaign promise Trump has not fulfilled. It’s also a false claim worth Four Pinocchios.
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