In an Effort to Limit Reach of the Johnson Amendment, Reps. Hice and Scalise Introduce the Free Speech Fairness Act

One of Donald Trump’s campaign promises made to attract the support of evangelical Christians is to bring about an appeal of the so-called Johnson Amendment. What is known as the amendment is actually a portion of the IRS code enacted with the support of Senator Lyndon Johnson that prohibits 501-C3 nonprofit charitable institutions, including churches, from participating in political campaigns. It has been interpreted as preventing endorsements of candidates from the church pulpit, allowing advocacy of a candidate in a church bulletin,, or opposing a measure or candidate.

The measure is viewed by some as being an infringement on the the First Amendment rights of the church and its pastors. The rule is looked at as being a cudgel used by the Internal Revenue Service to keep churches in line. Others worry that without the measure, nonprofits, including churches, could become tax exempt political advocacy organizations, similar to SuperPACs, that could be used to funnel money tax free into politics.

In an effort to address this issue, Georgia 10th District Rep. Jody Hice and Louisiana 1st District Rep. introduced H.R. 6195, the Free Speech Fairness Act, late last month. While the measure does not fully repeal the Johnson Amendment, it would allow political messaging by a non profit as long as such communication was made int he course of its normal activities. In effect, the “normal activities” distinction would allow a pastor to endorse a candidate or measure in a sermon, but would not allow a nonprofit to solicit donations for a specific political cause it was planning to endorse or oppose.

Hice, who is a Baptist pastor, told the Christian Post that the existing rule forces religious officials to censor themselves for fear of IRS action:

“I would just like to say as a pastor from my personal experience, just the threat of the IRS potentially taking away tax-exempt status is enough to cause pastors and nonprofits to self-censor themselves right out of the game,” Hice said. “That is what has taken place. Every election cycle, I would receive letters and great threats and intimidations about how we could be facing a potential lawsuit or removal of our tax-exempt status. Just about every church receives those kinds of letters every election cycle.”

The measure was referred to the House Ways and Means committee. Realistically, the measure is likely to go nowhere in the final weeks of the 114th Congress. Its prognosis if it is re-introduced next year would depend on which candidate voters choose on November 8th. A President Trump would likely support the measure. President Clinton, not so much.