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The lawsuit calls for the Johnson Amendment to be declared unconstitutional

Aug 31, 2024

A coalition of Christian ministries is suing the IRS because the groups want the ability to endorse political candidates without losing their tax-exempt statuses. The complaint, which was filed on Wednesday, pits the National Religious Broadcasters, Intercessors for America, and two random Texas-based churches against IRS Commissioner Danny Werfel.

All of this involves the Johnson Amendment.

For the uninitiated, here’s what you need to know: Just about all non-profit groups (including charities, cause-based organizations, and churches) are considered by the IRS to be 501(3)s. With that designation, the IRS is saying these groups are not looking to make a profit but rather serve a greater cause. As a way to encourage people to give money to those groups, contributions to them may be deducted on donors’ taxes. It’s theoretically a win-win for both sides.

To keep the 501(3) designation, however, there are certain rules most of these groups must follow: For example, they have to fill out paperwork each year (a “Form 990&rdquo detailing how much money they took in and how much is getting paid out and to whom. It’s a way for donors to keep tabs on the organizations and make sure they’re living up to their stated missions.

They also cannot endorse political candidates. They can always promote their partisan causes, and they can also issue “score cards” saying certain politicians uphold their values while others do not (wink wink), but they cannot explicitly tell members how to vote. That rule was proposed by then-Senator Lyndon B. Johnson in 1954, hence the name; it didn’t become an issue until decades later.

Houses of worship actually get an even sweeter deal. They are automatically granted a tax-exempt status (whereas secular charities have to fill out paperwork to earn the designation) and they don’t have to fill out the Form 990 at all. (Church/state separation groups have argued that the government’s preferential treatment for houses of worship in that regard is unconstitutional, but the courts haven’t agreed.)

Despite all that, plenty of conservative pastors still argue that these rules are too onerous and they’ve deliberately tried to goad the IRS into revoking their tax-exempt status just so they can file a lawsuit over it.

For several years during Barack Obama’s presidency, for example, hundreds of evangelical churches participated in “Pulpit Freedom Sunday” where they proudly endorsed Republican candidates and then, just to make sure their actions weren’t ignored, sent videos of those sermons directly to the IRS.

The IRS had every reason to take action and revoke the churches’ tax exemptions. But they never did.

In fact, over the past few decades, the IRS has only followed its own rules once. Just before the 1992 elections, a group called Branch Ministries ran full-page newspaper ads urging people not to vote for Bill Clinton. The IRS revoked the group’s tax exempt status. There was a lawsuit. The IRS won. (The Congressional Research Service, a government-backed public policy research institute, said another church also lost its tax exemption in 2012… but no further details are available.)

But that’s it. 70 years of the Johnson Amendment… and maybe two ministries that were punished by the IRS for violating it.

By the time Donald Trump was in office, the violations were even more egregious. There was no need for a concerted effort to endorse candidates because it was apparent to everyone that the IRS wasn’t going to punish pastors for telling church members how to vote. It didn’t help that Trump claimed he got rid of the Johnson Amendment… even though that was a lie. Churches have just been endorsing candidates ever since. While some churches have also endorsed Democrats, this is overwhelmingly a conservative/Republican issue. They’re the ones with the most to lose if the Johnson Amendment was ever enforced.

In 2022, ProPublica and The Texas Tribune published a damning piece attempting to get to the bottom of what the IRS was actually doing about these churches that violated the Johnson Amendment. What they discovered was that no one was minding the store.

At least not publicly.

They found 18 churches over the previous two years explicitly violating the Johnson Amendment. (It’s almost certainly many, many more.) These were churches where the actions of the pastors weren’t at all ambiguous. If the IRS enforced its own rules, these churches would have instantly lost their tax exemptions. None of them did, and that’s because the IRS didn’t seem to care:

… The IRS has largely abdicated its enforcement responsibilities as churches have become more brazen. In fact, the number of apparent violations found by ProPublica and the Tribune, and confirmed by three nonprofit tax law experts, are greater than the total number of churches the federal agency has investigated for intervening in political campaigns over the past decade, according to records obtained by the news organizations.

In response to questions, an IRS spokesperson said that the agency “cannot comment on, neither confirm nor deny, investigations in progress, completed in the past nor contemplated.” Asked about enforcement efforts over the past decade, the IRS pointed the news organizations to annual reports that do not contain such information.

Why was the IRS acting like the CIA? No clue. They were saying they couldn’t confirm or deny investigations into churches that were openly and brazenly violating the law as if enforcing rules that were purposely broken amounted to some sort of national security issue.

It didn’t help that the IRS now needs a high-level official signing off on such investigations—and no one was employed in that position for a while, “leaving lower IRS employees to initiate church investigations.” Nor did it help that the IRS just stopped looking at churches’ political activity for several years during the Obama administration.

As Andrew Seidel of Americans United for Separation of Church and State told the reporters at the time, churches already don’t tell the IRS how much money they’re taking in or where it’s going. By giving them enough leeway to endorse candidates, the IRS was “essentially creating super PACs that are black holes.”

Here’s how useless the IRS is when it comes to prosecuting churches that violate their rules:

In response to a Freedom of Information Act request from ProPublica and the Tribune last year, the IRS produced a severely redacted spreadsheet indicating the agency had launched inquiries into 16 churches since 2011. IRS officials shielded the results of the probes, and they have declined to answer specific questions.

Just 16?! What is the point of reporting churches to the IRS if no one’s paying any attention to the complaints? And what does it even mean that they’ve “launched” inquiries? If hundreds of pastors are prodding the IRS to come after them by telling people how to vote, and the IRS is barely lifting a finger—and, even then, only against a few of those churches—what the hell are they doing?

Either the IRS needs to eliminate the Johnson Amendment and allow all non-profits to have the option of playing politics, or it must enforce the rules even if that means going after Christian churches.

The irony in all this is that the churches pushing to repeal the Johnson Amendment say they’re doing it because they don’t want to be beholden to the government. They say they want the freedom to preach whatever they want, including political endorsements, and they don’t want the government telling them what they can’t say. And yet, by opposing the Johnson Amendment and by demanding a right to promote candidates, they’re effectively becoming tools of the Republican Party.

So that’s where we’re at today. The Johnson Amendment is still on the books, but it’s almost never enforced. And yet there’s now a lawsuit pretending that the Johnson Amendment is hindering the supposed free speech rights of Christians.

The complaint argues that churches are forced into 501(3) status and are therefore “automatically silenced” by the government. For example, they say the plaintiffs want to speak out about the candidates’ positions—which they’re already legally allowed to do!—but they are too scared to do so because they fear the Johnson Amendment, as if their ignorance is a reason to strike down the rule. (They “have engaged in self-censorship,” they write while the tiniest violin plays in the background.)

They also say many newspapers are non-profits, yet they’re able to endorse candidates—14 pages of the lawsuit are dedicated to providing examples of this.

The plaintiffs then spend pages documenting examples of churches openly endorsing Democratic candidates without penalty. Their conclusion?

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(3). This is a denial of both religious freedom and equal protection. 

Elsewhere, they claim endorsements “go unchallenged by the IRS especially if the candidates in question are from the Democratic Party.”

The plaintiffs say they have to file this lawsuit because the only other option is to break the rule (by endorsing a candidate) and risk losing their tax exemption, which would stick if their lawsuit failed. So they’re suing now to avoid problems down the line.

This lawsuit should fail for a number of reasons . First of all, the people who want to see the Johnson Amendment enforced want it applied across the board, not to benefit one side or the other. It’s not like church/state separation groups are totally fine with it if a historically Black church endorses a Democratic candidate. We want it applied universally and think the IRS should be funded to the point where it can investigate all these allegations.

The cherry-picked examples of unenforced violations are also laughable. It’s true that there are examples of churches endorsing Democrats, but there are so many more examples of evangelical churches endorsing Republicans, and this lawsuit seems unconcerned about that pesky little fact. How can anyone fail to call out right-wing churches for the same behavior, then, with a straight face, argue that the IRS is selectively enforcing its rule?

The closest they come to acknowledging that their side does this too is when they mention Cornerstone Chapel in Leesburg, Virginia. Weeks before the 2020 election, Pastor Gary Hamrick urged the congregation to vote for Donald Trump. He didn’t flat-out say that, but he implied it by saying (of Democrats): “I don't know how, in good conscience, a Christian can vote for an agenda that is evil.”

According to the lawsuit:

Subsequently the IRS began an enforcement action against Cornerstone Chapel on the basis of implicit support or opposition of political candidates. The IRS levied and Cornerstone Chapel paid a tax penalty for violating the Johnson Amendment.

This is news to me. As far as I can tell, there weren’t any media reports about that alleged investigation, much less a fine, and I can’t find outside verification of those claims. (Intercessors for America, one of the groups involved in the lawsuit, promoted that sermon on its website.)

But let’s suppose that’s true: It still means that church, despite openly violating the Johnson Amendment, didn’t lose its tax-exempt status. They had to pay a fine of some unspecified amount (was it $1? $1,000?) and then the IRS went away.

If that’s the worst example the plaintiffs can point to of the IRS coming after a Republican-supporting church, then why the hell are they suing? They have it pretty damn good!

What about the newspapers claim? If we’re talking about non-profit media outlets, then guess what? They’re not supposed to make political endorsements either! The IRS should absolutely go after them. The fact that so many outlets, many of which may have endorsed Democrats, have avoided such penalties doesn’t suggest bias by the IRS. It shows that the IRS is an institution that’s simply not concerned with enforcing its own rules.

That said, it’s not clear the Christian plaintiffs understand how some newspapers work. They cite The Philadelphia Inquirer as a newspaper owned by a non-profit while also endorsing candidates. Hypocrisy, right? Not quite, as their CEO explained to Religion News Service:

“The Philadelphia Inquirer is owned by the nonprofit Lenfest Institute for Journalism, but the newspaper remains a for-profit public-benefit corporation,” Jim Friedlich, CEO of the Lenfest Institute for Journalism, told RNS in an email. “As a for-profit entity, The Philadelphia Inquirer is permitted to publish political endorsements, as it has for decades. It does so following thoughtful research on candidate policy positions, qualifications, integrity, and track record.”

In general, though, I want the IRS to go after non-profit media outlets and houses of worship if they’re endorsing candidates, regardless of which party they’re supporting.

Finally—and this is just a strategic issue—if the concern really was that the IRS is harming houses of worship, smarter lawyers would have brought together a variety of religious (and non-theistic!) organizations that feel muffled by the rule. By having four plaintiffs who espouse conservative Christianity, it sends the message that this is just a small group of whiners rather than a systemic issue that needs immediate fixing.

Even though this lawsuit should fail, that doesn’t mean it will. It was filed in the U.S. District Court for the Eastern District of Texas in Tyler… which happens to be a circuit where the only two judges who can hear the case, Jeremy D. Kernodle and J. Campbell Barker, are both Trump appointees. (The National Religious Broadcasters (NRB) association says the case was filed here because that’s where the two churches that are plaintiffs are located... but—let’s be honest here—those two churches were included in the lawsuit only because they’re located in the district. It’s not like the lawsuit points to any special reason they’re involved in the case.)

So the game plan seems pretty straight-forward. The Christians in this case want a Trump judge to strike down the Johnson Amendment. If there are appeals, they’re hoping this case goes all the way to the Supreme Court, where the right-wing super-majority can declare the Johnson Amendment unconstitutional and turn churches across America into extensions of the Republican Party.

(Portions of this article were published earlier)