Bill would allow charitable nonprofits to endorse candidates

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1 of 2 | The Free Speech Fairness Act would permit political statements by organizations, including places of worship, that have federal tax-exempt status 'if such statements are made in the ordinary course of carrying out [their] tax-exempt purpose.' Photo by MART PRODUCTION/ Pexels
SALT LAKE CITY, June 10 (UPI) -- Republican lawmakers have introduced a bill that would amend a provision in the Internal Revenue Code to allow nonprofit entities, including houses of worship, to endorse or oppose political candidates.
Under the current provision in the tax code, called the Johnson Amendment, a charitable nonprofit may not participate in, or intervene in -- including publishing or distributing statements -- any political campaign on behalf of or in opposition to any candidate for public office.
The Free Speech Fairness Act would change that by permitting statements by organizations that have Section 501(c)(3) tax-exempt status "if such statements are made in the ordinary course of carrying out [their] tax-exempt purpose."
Entities with 501(c)(3) status -- including churches, synagogues, mosques and other places of worship -- are exempted from taxation, and donations to them are tax-deductible for the donors. Penalties for violating the Johnson Amendment include revocation of the organization's tax-exempt status.
Sen. James Lankford, R-Okla., who, with Rep. Mark Harris, R-N.C., introduced the bicameral legislation March 31, said the act is needed to uphold free speech protections. The Senate bill is in early legislative stages, while the House bill has been referred to the Ways and Means Committee.
"Fundamental American values must extend to everyone, including pastors, social workers, or non-profit employees and volunteers," Lankford said in a news release. "Everyone should have their constitutional rights to assembly, free speech, freedom of religion and free press protected."
The legislation would affect only the prohibition related to political candidate support or opposition. Nonprofits presently can engage in a limited amount of lobbying and advocacy for or against issues in the political arena, including ballot measures, according to the IRS.
Rick Cohen, chief communications officer and chief operating officer of the National Council of Nonprofits, said nonprofits already "can and should and do speak out on issues" within the tax code limits.
"All [the Johnson Amendment] is saying is you can't get involved in pushing a candidate for office, and there are plenty of ways to be effective in your work without crossing that line," Cohen said of the Johnson Amendment.
The amendment, enacted in 1954, is named for then-Sen. Lyndon Johnson, who championed the law. It does not prevent religious leaders from endorsing candidates outside their position as clergy, such as talking to friends and family or supporting their candidacy on their personal social media pages.
There have been attempts throughout the years to eliminate the Johnson Amendment. During his first term, President Donald Trump in 2017 signed an executive order stopping its enforcement, but the law remains on the books.
Alessandro Terenzoni, vice president of public policy at Americans United for Separation of Church and State, said the Johnson Amendment protects the integrity of elections and nonprofits.
"Repealing or weakening this law would change the character of nonprofits as we know them," Terenzoni said. "It could transform houses of worship into political action committees, flooding our elections with even more dark money."
He said polls have repeatedly shown a broad cross-section of Americans, including faith leaders, evangelical Christians and Republicans, do not want houses of worship endorsing or opposing candidates.
"Congressional leadership would be wise to remember that when the Johnson Amendment was threatened during Trump's first administration, more than 4,500 faith leaders, 5,500 nonprofit organizations and 106 religious and denominational organizations weighed in to strongly oppose weakening or repealing the current law," Terenzoni said.
There is an array of opinions among churches on whether they should be involved in politics or talk about political issues, according to Jeremy Dys, senior counsel for First Liberty Institute, a nonprofit public interest law firm. The houses of worship, not the government, should make the call, he said.
"So if you decide you don't want to talk about politics in your church, that's fine," Dys said. "If you decide you do want to talk about politics or what your faith brings to bear upon a political discussion, we support your right to do that, as well."
He said Johnson added the amendment language to the IRS code because he had been opposed by Texas churches in his re-election campaign.
"That type of restraint on speech has no business in our country that otherwise values freedom of speech," Dys said. "Congress would do well to just simply eliminate the Johnson Amendment."
Separate IRS investigations of possible Johnson Amendment violations by two churches represented by attorneys with First Liberty and the Jones Day law firm were closed this spring.
In Florida, Jill Woolbright, a candidate running for re-election to the Flagler County School Board, stopped by New Way Christian Fellowship in Palm Coast on a Sunday in 2022 and addressed the congregation during the service about the importance of her faith and why she was running for office. Then, the pastor prayed for her, Dys said.
"And that was enough for the IRS to come after the church," he said.
The agency sent a letter to the church in June 2024, saying it had information that indicated New Way may have conducted "political campaign intervention activities." Allowing one candidate for office to speak at an event without providing all candidates with the same opportunity could be a violation, the letter said.
Dys and John Gore, an attorney at Jones Day, said the basis for the investigation was unconstitutional.
"Indeed, government inquiry into a church's exercise and expression of its beliefs during worship services is irreconcilable with the First Amendment's core protections of religious independence and free exercise, free speech and free association," they said in a letter to the IRS.
The agency closed its investigation in April, saying it had determined that the church's activities "continue to allow you to be exempt from paying federal income tax."
For Grace Church St. Louis in Missouri, it was important its members be involved with their government at every level, Dys said. Its civic engagement group researched websites of candidates running in the 2022 local school board elections, posted the information on the church's website and made a physical copy available at the church, he said.
The candidates included church members Linda Henning, who was running for a seat on the Ritenour School Board, and Jeff Mintzlaff, who was running in the Kirkwood School Board race. Their fellow congregants were encouraged by the church to support them for being willing to run for office, which prompted the IRS to start an investigation, Dys said.
The lawyers called the examination an improper government intrusion into a church's religious affairs. Ultimately, the agency backed off and affirmed what Grace Church is doing is legal and constitutional and the investigation was closed in May, Dys said.
Woolbright, Henning and Mintzlaff all lost their races.
A lawsuit filed against the IRS by four nonprofit religious organizations -- the Washington, D.C.-based National Religious Broadcasters; two Texas churches, Sand Springs Church in Athens and First Baptist Church Waskom; and Intercessors for America, a Virginia ministry organization that leads a movement of prayer and fasting for the nation's leaders -- is seeking a declaration that the Johnson Amendment is unconstitutional.
The Internal Revenue Code prohibits only nonprofits organized under Section 501(c)(3) from communicating their views about political candidates, according to the suit, which was filed Aug. 28 in U.S. District Court in Tyler, Texas. All for-profit corporations and all nonprofits organized under any other section of the code can speak freely, the suit says.
Hundreds of newspapers are organized under Section 501(c)(3), yet many openly endorse political candidates, the suit adds.
"Plaintiffs simply contend that they should also have the same freedom of speech," the suit concludes.
The National Council of Nonprofits said the suit contributes to the further politicization of the charitable sector and society.
"It will be opposed vigorously by the National Council of Nonprofits and all who are committed to serving communities rather than ideologues, self-serving politicians and their political operatives," the national council said.
Surveys conducted in 2017 showed 72% of the public supported keeping the Johnson Amendment in place and nearly 90% of evangelical leaders said it is wrong for preachers to endorse candidates from the pulpit, the council said.
Cohen said nonprofits prefer to stay above the partisan fray because it helps them do their work effectively no matter who's in office.
"We want our houses of worship to be a place where all are welcome and the same applies for all other nonprofits," Cohen said.
"All they care about is that if you're donating or volunteering, that you want to help make the world a better place. And when you come through their door, it's about whether you need their services or not, not your political leanings."