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What Happens If the Johnson Amendment is "Destroyed"?
Last week, President Trump said that he would "get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution."
If you're unfamiliar with the Johnson Amendment, Alliance Defending Freedom has produced a free guide, which you can download here.
Let's look first at the principle behind "destroying" the Johnson Amendment, and then we'll follow up with how the Free Speech Fairness Act provides a small but significant fix for it.
First, the principle.
Here's how David Harsanyi of The Federalist describes his reaction to hearing that President Trump wishes to get rid of the Johnson Amendment:
"Fantastic. The Johnson Amendment — a law forbidding religious organizations from engaging in political activities without losing their tax-exemption status — is an inexplicable attack on free expression; an illiberal hat-trick undermining the Free Speech Clause, Free Exercise Clause, and Establishment Clause. It was created specifically to inhibit debate by forcing churches to choose between free expression and faith.
"The Johnson Amendment empowers government to discriminate purely on the content of speech. So, for example, a pastor can say “Senators who fail to support school choice will soon find themselves in the fiery depths of hell, forever” but not “Candidate Al Franken will soon find himself in the fiery depths of hell, forever.” Imagine such laws dictating speech in publically funded universities — or anywhere else, for that matter."
Over at The Boston Globe, Jeff Jacoby added this:
"According to the IRS, because churches are exempt from paying taxes under the Internal Revenue Code’s Section 501(c)(3), they 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.' A church violating that ban can have its tax-exempt status revoked.
"The prohibition has been in the tax code for more than six decades. It was an act of payback engineered in 1954 by then-Senator Lyndon Johnson after a couple of tax-exempt organizations in Texas published and distributed pamphlets opposing his reelection bid and urging support for the Democrat challenging him in that year’s primary. Under the Johnson Amendment, tax-exempt charitable organizations would henceforth be barred from endorsing or opposing any candidate. LBJ wasn’t targeting houses of worship. But freedom of speech and expression in houses of worship has been inhibited ever since by Johnson’s act of retribution."
The summary? The Johnson Amendment is an unfair restriction on freedom of speech for non-profits, especially churches.
And now, let's look at the Free Speech Fairness Act, which provides a fix for the Johnson Amendment. Here's what ADF Senior Counsel Erik Stanley wrote in this blog:
"The bill does not repeal the Johnson Amendment. Instead, it amends the law to allow for speech that is made 'in the ordinary course of the organization’s regular and customary activities.' This means that, as you carry out the mission of your church, you would have the right to speak freely on all matters of life, including candidates and elections. You would not have to fear IRS censorship or punishment for simply exercising your right to free speech and freedom of religion. Put simply, the bill inserts a 'relief valve' for speech into the Johnson Amendment and gets the IRS out of the business of policing the speech of America’s pastors and churches. "
Read the rest of the blog post here, and watch Stanley discuss the bill here:
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