Johnson Amendment Repeal Removed from Final GOP Tax Bill

"A Democratic senator announced Thursday night that the repeal included in the House version of the tax bill, which would allow churches and other nonprofits to endorse candidates without losing their tax-exempt status, was removed during the reconciliation process with the Senate version, which did not include a repeal." CToday

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Aaron Blumer's picture

EditorAdmin

The last thing we need is to make politicized pulpits even more tempting. Preach biblical perspective on the issues of the day? Absolutely. Back candidates? John 2:16.

DLCreed's picture

So you're willing to cede your First Amendment rights as a pastor to the control of the government because some pastors might politicize their pulpit?  If the government can prevent you from speaking on political things under the constitution, then they can prevent you from talking on anything.  Plus...who gets to define "political"?  (Answer: The GOVERNMENT).  It's past time the Johnson Amendment be put to a Supreme Court test.  It's a dangerous step in the direction of message approval.  Giving Churches tax exemption is not some sort of privilege with quid pro quo expectations.  It is a matter of Separation of Church and State.  The power to tax IS the power to control.

Larry's picture

Moderator

I think there are many who are confusing church issues with civic issues. Even though I strong believe a church should not endorse candidates or political positions, in terms of civics, no religious institution should have to purchase the right to speak, and the government should not be able to buy silence through tax policy. The only way to avoid this is to have all religious institutions tax exempt. It prevents unfair or unequal tax treatment. It prevents the purchasing of speech or the purchasing of silence.

Aaron Blumer's picture

EditorAdmin

"So you're willing to cede your First Amendment rights as a pastor to the control of the government because some pastors might politicize their pulpit?"

Some things about that.

  1. There is no first amendment right to have the government fund your political advocacy by granting you tax exempt status. (i.e., w/o Johson, pastors can still endorse candidates. They just can't get a tax break while doing it. No speech is actually prevented.)
  2. What is being ceded in this case is a "right to do something wrong." This is not much to give up in light of #1.
  3. There is no "might" about it.
  4. Politicizing the pulpit is still possible under Johnson, and went on for years. But the rule does help apply some restraint. Without it, we open the floodgates.
  5. We're not in a situation where we are talking about further restricting free speech. The rule is already in place and has been for many decades. The relevant question is this: what will be the consequences of removing it now?
G. N. Barkman's picture

Probably not much.  Most pastors are not interested in endorsing candidates from the pulpit.  That is, unless you're talking about liberal pulpits and black churches.  They've been doing this pretty regularly without consequences.  It looks like the Johnson rule is a pretty weak club, but when it's wielded, it seems to target only conservatives.

G. N. Barkman

Bert Perry's picture

What's worth noting is that pastors are free to note what they feel God thinks about various issues, and quite frankly these days the distinction is pretty black & white.  If a pastor thinks God's for welfare, the obvious conclusion is vote for the Democrat.  If he thinks God's against abortion, the obvious conclusion is to vote Republican.  

So if a pastor thinks he's got to endorse candidates specifically, I've got to question his rhetorical skills, or otherwise would assume that his congregation doesn't bother to read the papers.  And ahem, I would dare say that as biased as the papers are, a voter who does not consult them from time to time is a fool. 

Aspiring to be a stick in the mud.

DLCreed's picture

Aaron Blumer wrote:

"So you're willing to cede your First Amendment rights as a pastor to the control of the government because some pastors might politicize their pulpit?"

Some things about that.

  1. There is no first amendment right to have the government fund your political advocacy by granting you tax exempt status. (i.e., w/o Johson, pastors can still endorse candidates. They just can't get a tax break while doing it. No speech is actually prevented.)
  2. What is being ceded in this case is a "right to do something wrong." This is not much to give up in light of #1.
  3. There is no "might" about it.
  4. Politicizing the pulpit is still possible under Johnson, and went on for years. But the rule does help apply some restraint. Without it, we open the floodgates.
  5. We're not in a situation where we are talking about further restricting free speech. The rule is already in place and has been for many decades. The relevant question is this: what will be the consequences of removing it now?

Responses...

1. It is the argument of the liberals that tax exemption equals "funding".  How is that being allowed to keep something that is already and rightfully yours the equivalent of "funding"?  It isn't.  This also implies that the government is doing the church some sort of favor by not taxing it.  It is not.  It is a constitutional issue and right.  230 years of precedent underline it.

2. What is "wrong" (and in what way) with a church taking a position on a candidate?  Unwise?  Maybe.  Controversial? Perhaps.  But Wrong?  I'm not seeing it.  But let's make no mistake here...if the government can say you cannot take a position on a candidate, then they have the authority to say you cannot take a position on an ISSUE.  So what issues are quasi-political on which a pastor might want to speak?  How about abortion, gay marriage, divorce, tax policy on families, tolerance/plurality, etc...  The camel has its nose in the tent with the Johnson Amendment.  We need to smack it soundly and send it back out to pasture.

3. There is a "might" to it and a strong one at that.  Removing the Johnson Amendment would put the onus of how much or little to say directly on the Pastor and the leadership of the church -- and not in the hands of the government.  Some might say something.  Some might not.  It should already be noted that the government has already decided to turn a "blind eye" to liberal churches being activist while sending letters of concern/warning to more conservative churches that are doing far less politically, but are perceived to be approaching their mystical "line".

4.  Again...the government should have NO ROLE whatsoever in establishing/restraining/editing/approving any speech that is coming out of a church.  That is the very crux of the 1st Amendment.

5. Interpretation of the law and rules has always been fluid and remains so today.  How did we get to the point where we are murdering infants in utero and sanctioning gay marriages?  Because of the fluidity of legal interpretation.  Drawing a hard line is the best way to prevent that.  This is a regulation, not a law that has been tested in the court.  Congress won't rescind it and it has not been tested in the courts as of yet.  If the former won't happen, then I think the latter should.

Fundamentally, I think this boils down to how much you are wiling to trust the government and how much control you are willing to place in their hands.  As for me, I don't trust the government and I'm not willing to place any control in their hands not specifically outlined in the Constitution.  If your church or mine or the black church down the street wants to make a policy on what can or can't be said in the pulpit, then so be it.  Just keep the government out of it.  It is not their responsibility to police the church.  It is ours.

 

Jim's picture

It's easy for a pastor to endorse a candidate: (5 very EZ ways)

  1. Put a bumper sticker on your car (but not the church-owned van)
  2. Put a yard sign up in your housing-allowanced / tax advantaged yard of your home
  3. Have a blog like DCreed and tell everyone your view. Updated: My public endorsements from last year.
  4. Host a campaign event in your housing-allowanced / tax advantaged home
  5. Teach on some moral issue (eg abortion). Tell your congregants that candidate A is pro-choice (pro-death) and candidate B is pro-life. Don't mention that candidate A is a democrat!

 

Jay's picture

  1. ...
  2. Put a yard sign up in your housing-allowanced / tax advantaged yard of your home
  3. ...
  4. Host a campaign event in your housing-allowanced / tax advantaged home

I'd be really, really surprised if that isn't challenged in court eventually. 

I have to believe that the parsonage for a church should / would be considered part of that tax-exempt entity, and holding any events or putting any signs up on those premises would constitute an unlawful endorsement and a violation of the Johnson Amendment.

Of course, if the pastor buys his own home with his own money and the church doesn't subsidize it at all, then that's a different kettle of fish.

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Bert Perry's picture

....is the very notion of tax advantaged housing.  The original rationale wasn't religious at all, but rather it was (and remains) available to those whose jobs (soldiers, pastors) tend to make them move often.  So my guess would be that the exemption would go away in the same way our country has forgotten what the real purpose for family law is--not to consecrate relationships, but rather to deal with the fallout when a relationship ends and protect weaker vessels.  

Aspiring to be a stick in the mud.

DLCreed's picture

Jim wrote:

It's easy for a pastor to endorse a candidate: (5 very EZ ways)

  1. Put a bumper sticker on your car (but not the church-owned van)
  2. Put a yard sign up in your housing-allowanced / tax advantaged yard of your home
  3. Have a blog like DCreed and tell everyone your view. Updated: My public endorsements from last year.
  4. Host a campaign event in your housing-allowanced / tax advantaged home
  5. Teach on some moral issue (eg abortion). Tell your congregants that candidate A is pro-choice (pro-death) and candidate B is pro-life. Don't mention that candidate A is a democrat!

 

DCreed doesn't have a blog at the moment.  However, please stand by..... {suspense builds slowly}

 

Larry's picture

Moderator

Aaron, this has nothing to do with what the church should or should not do; the problem is not a Christian problem. It is a civic problem. The government wants to charge religious institutions of all types (Christian, Jewish, Muslim, etc.) for practicing religion. The government wants to use tax policy to coerce silence or to permit speech. In other words, you can buy the right to exercise your religion for a fee. That is unconstitutional in our country (or at least should be given the first amendment). 

Tax exemption is to keep government out of religion. It needs to stay that way. The church should not give up tax exemption; the government should refuse to take it away. 

 

 

Aaron Blumer's picture

EditorAdmin

Mostly agree that it's not about what the church should do. But "nothing to do" is overstating it more than a little. The fact is that most of the motivation for removing this long standing policy is more freedom to be more political. This will certainly be a result if the status quo is reversed. So... it's inseparable from what the church will do.

It's really not about buying silence. It's about not subsidizing religious advocacy for candidates. It's a sound policy.

DLCreed's picture

Aaron Blumer wrote:

Mostly agree that it's not about what the church should do. But "nothing to do" is overstating it more than a little. The fact is that most of the motivation for removing this long standing policy is more freedom to be more political. This will certainly be a result if the status quo is reversed. So... it's inseparable from what the church will do.

It's really not about buying silence. It's about not subsidizing religious advocacy for candidates. It's a sound policy.

Actually, it isn't with me.  As I've aged, I've grown less political and frankly, never mention it from our pulpit.  It IS about the Separation of Church and State and the First Amendment protections for me.  Removing it won't change me a bit in regard to what I say from a pulpit.  I will, however, feel better knowing that I speak or I don't speak without the government breathing down my neck one way or another.

Aaron Blumer's picture

EditorAdmin

Part of what might be confusing the issue is the idea that there is a civic sphere that is fully distinct from the religious sphere -- that a "wall of separation" is possible. But the reality is that the two spheres of church and state in a best case scenario, have some shared boundaries and those boundaries are complex. Personally, I'd say the boundaries overlap and where they overlap, there will always be some friction. There is no way to make it not messy.

Note this for example:

  • You already can't say from your pulpit that we all ought to gather our weapons and attack the governor or the president (well, you can say it, but there are consequences)
  • In many states (I don't think there's a fully developed federal standard yet), there are legal limits on how parents can limit medical treatment for their children on religious grounds.
  • The government is involved even in defining what a church is, whith respect to the law. So I can't get some friends together, form a club, and stop paying taxes because we decided to call it the Church of Cheese and Chess.

I'd like to develop this further at some point, but it'll take some time. The point is that there has to be some government rule-making with respect to churches because churches exist in geographical locations within jurisdictions. Because there is taxation, rules have to define where it begins and ends and why. The question for "Johnson Amendment" is not whether gov. should be involved at all in regulating churches but at what point it's involvement should end.

I do not think it's unfair at all for it to say "we'll refrain from taxing you but we need you limit at least a little what you do to directly influence government." Churches are asking the gov. not to bother them with taxation. The gov. saying "Fine, but don't bother us either beyond this point."

Larry's picture

Moderator

I do not think it's unfair at all for it to say "we'll refrain from taxing you but we need you limit at least a little what you do to directly influence government." Churches are asking the gov. not to bother them with taxation. The gov. saying "Fine, but don't bother us either beyond this point."

It's not about being fair but about being constitutional. The government has no right to control to free exercise of religion by any means, including tax policy. This has nothing to do with other rules. When the government offers certain benefits in exchange for certain tax treatment, they are violating the free exercise clause. 

We are not talking about whether one person can force their religious choices on another (such as in healthcare), or whether someone can threats of violence. We are not even talking about determining what a religious organization is, though it is not that hard given the very old and accepted definition of religion. It's not even about a wall of separation or overlapping spheres.We are talking simply about whether the government can charge a religious institution to exercise its religious rights.

I have no intention of addressing politics or endorsing candidates. I wouldn't do it even if they gave me money to do it. But that's not the point here.

Bert Perry's picture

Aaron's notes actually re-confirm for me why the 16th Amendment was a bad idea in the first place.  Whenever you have direct taxes like the income tax, a powerful mechanism is introduced to "guide" or control peoples' choices.  Going off the top of my head, Schedule A tells me I ought to give to charity, spend money on medical care and state and local taxes, get a big mortgage on my house, and the like.  I'm told elsewhere in the tax code to have kids and put them in daycare, spend money on tuition, etc..

And then on the flip side, these charities funded in part through Schedule A and other tax provisions use the tax free status to say that these institutions cannot endorse candidates.  OK, where did Washington's (?) dictum about government being a dangerous servant and a fearful master go?  It seems to be right out the window.

So I'd argue that the Johnson amendment--actually aimed first at other nonprofits than churches if I remember correctly--is the tip of an iceberg of government involvement that we'd never have had if we'd rejected the 16th Amendment.  It's not the biggest deal, as any halfway intelligent pastor can communicate which candidates are acceptable without naming them or giving them a pulpit, but it is the tip of the iceberg.

Aspiring to be a stick in the mud.

Larry's picture

Moderator

 The fact is that most of the motivation for removing this long standing policy is more freedom to be more political. This will certainly be a result if the status quo is reversed. So... it's inseparable from what the church will do.

The motivation for removing it is irrelevant. The freedom for religious exercise must include the freedom for religions to exercise their religion. The only way to do that is to keep religious institutions free from government interference, including interference by tax policy. We know that government "pick winners and losers" by tax policy (tax breaks, subsidies, etc.). The only way to avoid that is tax exemption.

Aaron Blumer's picture

EditorAdmin

Much depends on how the issue is framed. If one starts out with the conclusion that a religious organization should be permitted to endorse candidates and remain tax free, and that this is inseparable from freedom of speech, then there is no way to defend Johnson. 

But this is assuming what needs to be proved. 

All 501c(3) nonprofits are prohibited from endorsing political candidates. This is because the tax exemption is seen as a kind of government funding -- which, relative to for-profit entities, it is. So the issue is whether churches should be allowed to be the exception to the rule and allow the government to essentially pay them to endorse candidates. There are multiple reasons why this is not a good idea. 

Churches already have some tax advantages over other nonprofits that arguably amount to subsidies. I don't think these are unjust, but these advantages cannot be limitless. The line has to be drawn somewhere. It's good where it is. Agitation against Johnson may well eventually result in churches being under all the same rules as regular 501c(3)s.

So, there is simply no way for the government to be neutral about taxation. Exemption is picking a winner.