The day before President Trump used his remarks at the National Prayer Breakfast to promise a repeal of the Johnson Amendment, a bill was introduced in Congress to effectively do that. It has not yet been scheduled for debate or a vote.
The Free Speech Fairness Act is being touted as a “fix” to the Johnson Amendment, a 1954 law that prohibits nonprofits from engaging in politics. But how much of a fix would the act be? Would it offer a First Amendment right of free speech to clergy — or trample the same First Amendment’s guarantee of a separation between church and state?
What does the Free Speech Fairness Act propose?
The Internal Revenue Service’s tax code as it relates to nonprofit organizations, which includes most houses of worship, says a tax-exempt organization — a 501(c)(3) in IRS parlance — may 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.”
The Free Speech Fairness Act would change that. The language of the act proposes to “allow charitable organizations to make statements relating to political campaigns, if such statements are made in the ordinary course of carrying out its tax exempt purpose.” The act would also require the organization making such statements not incur “more than de minimis incremental expenses” in doing so, which means with only minimal expenditure — no Super Bowl ads, no two-page New York Times ads, unless those are the usual places a tax-exempt organization promotes itself.
The act was introduced in the House by Reps. Steve Scalise, R-La., and Jody Hice, R-Ga., and in the Senate by Sen. James Lankford, R-Okla. Lankford is co-chair of the Congressional Prayer Caucus, Scalise is Catholic, and Hice is a Southern Baptist pastor.
Hice said in a statement that he had “experienced intimidation from the IRS firsthand,” adding, “I know just how important it is to ensure that our churches and nonprofit organizations are allowed the same fundamental rights as every citizen of this great Nation.”
How would the Free Speech Fairness Act work?
It’s all in the phrase “if such statements are made in the ordinary course of carrying out its tax exempt purpose.” What is meant by “the ordinary course?” Is there a limit on the amount of “incremental expenses?” Such phrases are “not self-defining,” writes Daniel Hemel, an assistant professor of law at the University of Chicago. “… much will depend on the way that the IRS interprets — and enforces — the ambiguous language that Hice and Scalise have put forward.”
But Himel finds the act fairly neutral. “It’s not obvious that the Free Speech Fairness Act would favor Republicans. It would allow Planned Parenthood the same freedom to endorse candidates that it would give to, say, Samaritan’s Purse.”
Who supports the Free Speech Fairness Act and who opposes it?
Opponents of any change or repeal of the Johnson Amendment — who include Americans United for the Separation of Church and State, the Secular Coalition of America, and the Baptist Joint Committee for Religious Liberty — worry about obscuring the line between the separation of church and state.
Many argue that religious leaders already engage in politics without fear of reprisal from the IRS. Some point to Rev. Jerry Falwell Jr.’s support of candidate Donald Trump, which did not endanger the tax-exempt status of Liberty University, where Falwell is president. Others say taxpayers would effectively be supporting speech they do not necessarily agree with. “If an organization, such as a house of worship, accepts favorable tax treatment, they’re being underwritten by the taxes you and I pay,” Ellen April, a tax law professor at Loyola University, writes in the Washington Post. “Which is fair enough, but then we, the taxpayers, shouldn’t have to pay for their partisan political speech that we may not agree with.”
Supporters of the act include the National Religious Broadcasters, an international organization of Christians in communication, the Family Research Council, and The Alliance Defending Freedom, a Christian organization that has long advocated a repeal of the Johnson Amendment. They view it as “restoring” free speech to nonprofit organizations, especially houses of worship. They also argue that critics concerned about the line between church and state misunderstand the principle.
“Thomas Jefferson’s ‘separation’ coinage doesn’t mean that there is a complete wall of separation between the two; it just means that the state should not have control over the church, nor shall the church maintain control over the state.” the act’s sponsors wrote in The Washington Post.
Where do Americans stand on the issue?
The public has shown little enthusiasm for politics in the pulpit. A 2016 Lifeway poll that found only 19 percent of Americans agree with the statement ,“It is appropriate for pastors to publicly endorse political candidates during a church service,” and a 2013 Pew Research Center survey found that two-thirds of Americans think clergy should not endorse political candidates.