Free speech & the Johnson Amendment

US Senator James Lankford (R-OK) introduced last week the Free Speech Fairness Act (S.264), which would allow pastors, churches, and other tax-exempt entities to publicly promote or oppose candidates in an election campaign. (The GOP –Republican– platform adopted last year among other things says the “federal government, specifically the IRS, is constitutionally prohibited from policing or censoring speech based on religious convictions or beliefs” and urges the repeal of the “Johnson Amendment.”)

President Trump promptly reacted the following day and vowed to repeal the law that restricts political speech from the pulpit. “I will get rid of, totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear,” Trump told the audience.

If we go back through the American history, we find that from the time of the first Pilgrims, American pastors enjoyed the freedom to speak boldly from their pulpit about the most crucial social and political issues of the day. The so-called "Johnson Amendment", introduced in the Senate by then Senator Lyndon Johnson, was approved in 1954 and applies to Section 501(c)(3) of the IRS Tax code. Under this regulation, tax-exempt organizations are forbidden to publicly express any kind of political opinions, even if proclaimed under religious principles.

The problem is how the Johnson Amendment has been manipulated by the IRS in more recent years. Most legal scholars claim that Lyndon Johnson had no intention for it to apply to churches. In fact, some legal groups claim that the application of this law to churches violates both the First Amendment’s Free Exercise Clause, which prohibits the government from regulating religious organizations more strictly than their secular counterparts, and the Religious Freedom Restoration Act, a 1993 federal statute that prohibits the federal government from imposing a “substantial burden” on a religious organization.

During the former Obama's Administration, the Evangelical Council for Financial Accountability (ECFA) convened a Commission to study, among other things, whether the Johnson Amendment should be amended or repealed. After long and careful study the Commission recommended amending the Johnson Amendment to restore the Constitutional right of free speech to churches and other nonprofit organizations and to allow:

1. Speech that would be no added cost or a very minimal cost to the organization (such as a sermon).
2. If the speech of the organization would cost more than that minimal amount, then the Johnson Amendment would only prohibit speech that clearly identifies candidates and expressly advocates for those candidates’ election or defeat.

This recommendation gave way to a movement of pastors in the United States standing up for their right to free speech by signing up for Pulpit Freedom Sunday , a petition that they presented to Congress.

The US Congress responded last September with the H.R.6195 bill that has been referred to the House Committee on Ways and Means. The US Senate followed last week with a similarly drafted bill, the S.264, and the US President is backing up the proposed Free Speech Fairness Act, that may be resumed as follows: "This bill amends the Internal Revenue Code to permit a tax-exempt organization to make certain statements related to a political campaign without losing its tax-exempt status. An organization may not lose its tax-exempt status under section 501(c)(3) or be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any statement that: (1) is made in the ordinary course of the organization's regular and customary activities in carrying out its exempt purpose, and (2) results in the organization incurring not more than de minimis incremental expenses."

[ Full text of H.R.6195 ]
[ Republican Party platform ]

President Trump signed an Executive Order on May 4th that is being considered by its supporters as a "first step" to repeal the Johnson Amendment, a legislative procedure that is now dependent on how the US Senate acts to promote the Free Speech Fairness Act, introduced early in February by Senator James Lankford (R-OK).

President Trump is thus complying with his promise on the next day the bill was presented in the Senate to "get rid of, totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear.”

However, the Executive Order is only a provisional solution and the issue of religious freedom is now in the hands of Congress. So far, this Senate proposal is presently dormant in the Committee on Finance without enough bipartisan support to proceed to a plenary vote.

Readers of my two messages may click on the link provided at the foot of my previous message to read the text of this proposal. For those who do not have the time, the issue moving Sen. Lankford and three other supporting senators, is their view that nonprofit organizations are unfairly punished for endorsing a candidate or for exercising their constitutional right to free speech in support or against a given policy. The punishment devised by the Johnson Amendment is to revoke their tax exemptions.

Sen. Lankford told the Oklahoma Gazette last March that: “Everyone should have free speech. Everyone should be able to speak out on issues they choose to and not feel like the IRS is monitoring them.”

That is essential for participatory democracy and no one should be deprived of the right to free speech.

Readers may call their representatives or senators or write them a note asking them to support or reject this Free Speech Fairness Act. That is a good tool of participation in the hands of all citizens. Enough calls or letters one way or the other may move mountains.