In 1954, Congress passed common-sense legislation that required religious, charitable or educational nonprofits to refrain from partisan political activity to maintain their tax-exempt status.
The “Johnson Amendment,” named after then-Senator Lyndon Baines Johnson (future President LBJ himself), passed with an overwhelming bipartisan majority. It enshrines two core principles: First, taxpayers should not subsidize organizations that spend their time and money trying to influence our elections by supporting or campaigning against a particular candidate. Second, voters have a right to know who is spending money to exert that influence.
Now, President Donald Trump — who has long promised to “totally destroy” the Johnson Amendment — and his Internal Revenue Service (IRS) are attempting to carve out a sweeping exemption to the amendment for 501(c)(3) religious organizations. This effort is contrary to existing law and is yet another example of the Trump administration’s disregard for our system of checks and balances.
Congress — the only branch with the power to change the law — has protected the Johnson Amendment for decades. In a blatant attempt to circumvent Congress’s authority, the administration has agreed to a proposed “settlement” of a lawsuit brought by religious organizations that support the administration's goal of undermining the Johnson Amendment. And now the parties are asking a federal court to approve this alleged settlement.
Campaign Legal Center, along with Public Citizen and Common Cause, has submitted an amicus brief to the court reviewing this matter. It is the only brief filed in the case that explains how this change in IRS rules could lead to a dangerous consequence for our democracy: the creation of new “super dark money groups,” funded by powerful special interests anonymously pouring tax-deductible money into our elections.
Here's how it would work: Under the proposed change, religious organizations, including houses of worship, could use undisclosed, tax-deductible contributions to support or oppose candidates for public office.
This would open the floodgates for special interests to support or oppose candidates by pouring unlimited amounts of money into groups claiming to be 501(c)(3) religious organizations. All of this money would be anonymous (not disclosed publicly by the recipient) — and, as a bonus, donors would be rewarded with a tax write-off, something that is not available to special interests who contribute to political parties, candidates, 501(c)(4) dark money groups or super PACs, for example.
There is every reason to believe that the financial benefits and added secrecy of this arrangement would make this new path for influencing our elections extremely attractive to big donors.
It's important to note that this issue has nothing to do with restrictions on freedom of speech or freedom of religion. Religious organizations can engage in political activities as they see fit. However, by doing so, they are no longer entitled to have American taxpayers subsidize their activities. Our court system, including the U.S. Supreme Court, has repeatedly acknowledged the constitutionality of this tradeoff.
More than a decade ago, Stephen Colbert and I warned the American people about the rise of super PACs and their impact on our political system. Disastrous court rulings, like Citizens United, enabled the creation of super PACs. A feckless regulator, the Federal Election Commission, has done nothing to stem ever-increasing amounts of spending, which drowns out the voices of everyday voters. These groups increasingly coordinate directly with candidates, contrary to the law.
Undermining the Johnson Amendment through executive fiat would add fuel to this raging inferno — exactly the opposite of what voters say they want in survey after survey on the influence of money in politics.
The Johnson Amendment ensures that public subsidies support charitable work, not partisan political advocacy. Exempting religious organizations from this rule would fundamentally alter the campaign finance landscape and further erode transparency in our elections. The spectacle of churches and charities becoming vehicles for dark money would also surely undermine public trust in the nonprofit sector.
Campaign Legal Center has been at the center of this fight ever since Donald Trump first voiced his intention to get rid of the Johnson Amendment in 2017. Today, we are determined to do everything we can to stop this unlawful abuse of executive power, which — at the end of the day — is really all about allowing special interests to exert even more influence over our elections at the expense of voters.
The nonpartisan Campaign Legal Center is dedicated to advancing democracy through law at the federal, state and local levels, fighting for every American’s rights to responsive government and a fair opportunity to participate in and affect the democratic process.
