Among the provisions in the House GOP’s tax bill that passed last week and might well make it into the Senate version is a repeal of the 1954 Johnson Amendment, named after then-senator Lyndon Baines Johnson, which prohibits churches and other nonprofit groups from engaging in political activity.
Rolling back the ban has long been championed by religious leaders who say it unfairly infringes on their First Amendment rights. Certainly, the idea that pastors and other clergy aren’t allowed to weigh in on elections or political issues from the pulpit would have struck the Founding Fathers as not only strange but inimical to the idea of a constitutional republic (especially since one of the signers of the Declaration of Independence, John Witherspoon, was a Presbyterian minster).
In practice, the ban is often ignored by religious leaders, who rightly believe religion shouldn’t be banned from the public square. Of course, there are some religious and nonprofit leaders who think repealing the 1954 ban could blur the line between politics and charitable or religious work,
But the biggest opponents of repealing the Johnson Amendment are the mainstream media, which tend to write about the ban as if it were part of the original Bill of Rights. The editors of the Washington Post warned that allowing pastors to speak out for or against political candidates “would permit churches, charities and foundations to engage in candidate-specific politicking and enable donors to reap tax breaks for political contributions for the first time.” The House bill, they say, would throw open “an entirely new channel for campaign money to politicize churches, charities and foundations.”
A recent story in The New York Times echoed this line, saying the change “could turn churches into a well-funded political force, with donors diverting as much as $1.7 billion each year from traditional political committees to churches and other nonprofit groups that could legally engage in partisan politics for the first time.”
Note that in both instances, “for the first time” really means “since 1954.” And we all know that prior to 1954, American churches were nothing more than behemoth political action committees, right?
The Amendment Aimed to Preserve LBJ’s Political Career
Of course they weren’t, and repealing the ban wouldn’t make them so. Consider the historical context. The original purpose of the Johnson Amendment wasn’t to prevent pastors from speaking out about politics from the pulpit, it was to ensure LBJ’s reelection to the U.S. Senate. After stealing his first Senate election through ballot fraud—he won by 87 votes in the 1948 Democratic runoff primary against a former Texas governor, Coke Stevenson—Johnson wanted to ensure that he handily won reelection in 1954.
In those days, Democrats dominated state politics in Texas, so winning reelection meant winning the Democratic primary. In 1954, Johnson’s primary challenger was a 30-year-old freshman state representative named Dudley Dougherty. But Dougherty, a relative nobody, wasn’t the problem. The problem was McCarthyism.
This was during the height of Sen. Joseph McCarthy’s hearings and speeches about the growing threat of communism, and although Johnson had little use for McCarthy—he called him a “loudmouthed drunk” who “can’t tie his g-dd-mn shoes”—he couldn’t afford to alienate major Texas donors, mostly oilmen, who hated communism and loved McCarthy. So he muted his criticism of McCarthy along with his general view that Americans’ fear of communism was overblown.
That worked on most of the Texas oilmen, but it didn’t work on H.L. Hunt, a billionaire businessman from Dallas who started a tax-exempt foundation called Facts Forum to promote his conservative, anti-Communist views through radio, television, and the publication of books and magazines. Another group called Committee for Constitutional Government, founded by the newspaper magnate Frank Gannett, was also pumping out anti-Communist material during this time, and Johnson suspected such tax-exempt organizations were quietly supporting his primary opponent, Dougherty.
This of course incensed Johnson, and he decided to do something about it on the floor of the Senate by offering a short amendment to the IRS code for regulating 501(c)(3) tax-exempt organizations. At the time, he said the amendment “seeks to extend the provisions of section 501 of the House bill, denying 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.” There was no debate on the amendment and it was accepted on unanimous consent.
Johnson goal was to undermine support for a political rival, not re-shape church-state relations. He likely could not have predicted—and would not have supported—the long-term ramifications. As Stephen Mansfield has noted, Johnson “does not seem to have had religion particularly in view. It doesn’t matter. Johnson’s amendment to the IRS code pertaining to 501(c)(3) organizations has meant that every tax-exempt church and ministry in America is kept from endorsing candidates or specific legislation if it would keep its tax-exempt status.”
The Ban Is Clearly Unconstitutional
The idea that religious leaders cannot, in their capacity as religious leaders, speak on political matters or instruct their parishioners on how to think about ballot issues is not just at odds with most of American history, it’s also clearly unconstitutional.
Erik Stanley, senior legal counsel and head of the Pulpit Initiative for the Alliance Defending Freedom, has long argued the Johnson Amendment is a clear violation of the First Amendment that “perpetuates a system that requires government agents to monitor and parse the words of a pastor’s sermon to determine whether that sermon violates the law and punishment should be meted out. That system is an excessive and unreasonable government entanglement with religion.”
Parsing the contents of a pastor’s sermon to determine whether it’s “too political,” Stanley argues, amounts to content-based restriction on speech. It also violates the First Amendment’s free-exercise clause. Does anyone honestly think that Christianity, Judaism, and Islam don’t have a lot to say about many of the hot-button political issues of the day? Pastors, rabbis, and imams can’t be expected to stay silent on social matters like abortion, gay marriage, and transgenderism—or, more to the point, stay silent about candidates who espouse views of those matters that are hostile to the teachings of their faith. The same goes for more conventional political matters, such as war, immigration, and welfare.
Religion has a lot to say about all those things, and religious leaders have a First Amendment right to speak to their congregations candidly about them—and about the candidates and officeholders who will make laws pertaining to them. When the City of Houston passed a transgender “bathroom bill” in 2014, a group of pastors began gathering signatures to overturn the ordinance by referendum vote. The city responded by subpoenaing the pastors’ sermons, a tactic which, although it ultimately failed, underscored the pressure facing religious leaders to keep quiet on political matters, even when such matters bear directly on religious teachings.
At a time when our politicians increasingly think government should insert itself into every facet of American life while religion should be relegated to a purely private activity, religious leaders shouldn’t feel like they have to remove themselves from the public square. Civil discourse needs them now, as always.