Johnson Amendment
The Johnson Amendment is a provision enacted in 1954 as part of the Internal Revenue Code that prohibits tax-exempt organizations under Section 501(c)(3)—including charities, foundations, and houses of worship—from directly or indirectly participating in or intervening in any political campaign on behalf of or in opposition to a candidate for public office.[1][2] Introduced by then-Senator Lyndon B. Johnson as a floor amendment to H.R. 8300 during the 83rd Congress, it was adopted without committee hearings, floor debate, or recorded vote, amid concerns over nonprofit political activities targeting Johnson's reelection.[1][3] The amendment's enforcement by the Internal Revenue Service has historically been infrequent, with few revocations of tax-exempt status for violations, yet it has engendered substantial debate over its impact on free speech and religious expression.[1][4] Critics, including conservative lawmakers and religious liberty advocates, argue it imposes a chilling effect on pastoral endorsements and pulpit discourse, prompting repeated repeal efforts, such as during the 2017 tax reform and executive actions in 2017 to limit enforcement against churches.[4][5] Defenders maintain it preserves the nonpartisan integrity of tax-favored entities and averts the conversion of nonprofits into partisan vehicles, a position upheld by federal courts rejecting constitutional challenges.[6] As of 2025, the provision endures despite ongoing litigation and legislative pushes, reflecting persistent tensions between tax policy, electoral integrity, and First Amendment rights.[7][8]Legal Provisions
Statutory Language and Scope
The Johnson Amendment refers to the provision in Section 501(c)(3) of the Internal Revenue Code that conditions tax-exempt status on organizations refraining from certain political activities.[9] The relevant statutory language states: "Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does 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."[9] This language establishes an absolute prohibition against 501(c)(3) organizations participating in or intervening in political campaigns, distinct from the "substantial part" threshold applied to legislative influence activities.[10] [9] "Participate or intervene" encompasses direct actions such as financial contributions to campaign funds or indirect actions like endorsing or opposing candidates through public statements, publications, or distributions.[10] The scope applies exclusively to organizations qualifying for exemption under 501(c)(3), including religious entities (such as churches), charitable foundations, educational institutions, scientific research groups, and those focused on public safety testing, literary works, amateur sports promotion (without facilities), or animal and child welfare prevention.[9] [11] It does not extend to other tax-exempt categories, such as 501(c)(4) social welfare organizations, which face no such campaign intervention ban but must ensure political activities remain non-primary.[2] Violations can result in denial or revocation of tax-exempt status, though enforcement occurs through IRS audits rather than automatic disqualification.[10] Non-partisan activities, like unbiased voter education or registration drives, fall outside the prohibition provided they do not favor or oppose specific candidates.[10]Distinctions from Lobbying and Issue Advocacy
The Johnson Amendment, codified in Section 501(c)(3) of the Internal Revenue Code, imposes an absolute prohibition on tax-exempt organizations from directly or indirectly participating in or intervening in any political campaign on behalf of or in opposition to any candidate for public office, including endorsements, financial contributions, or coordinated expenditures.[10] This ban, enacted in 1954, targets partisan electioneering activities that could favor or oppose specific individuals seeking elective office, distinguishing it from broader forms of civic engagement.[12] In contrast, lobbying—defined by the IRS as attempts to influence legislation through activities such as contacting legislators or urging the public to do so—is permitted for 501(c)(3) organizations but subject to strict quantitative limits to ensure it does not constitute a "substantial part" of the organization's overall activities. Organizations may elect the 501(h) expenditure test, which caps lobbying expenditures at percentages of their exempt-purpose outlays (e.g., 20% for the first $500,000, scaling down to 5% above $1.5 million, with a $1 million absolute maximum), or rely on the default facts-and-circumstances test assessing lobbying's relative scale and frequency. These limits allow advocacy for or against specific bills or legislative policies, such as testifying before Congress or grassroots mobilization on tax reforms, provided they remain insubstantial compared to charitable, educational, or religious missions.[13] Issue advocacy, which involves public education and discussion of social, moral, or policy matters without reference to candidates or direct legislative calls to action, falls outside the Johnson Amendment's scope and faces fewer restrictions than lobbying.[12] For instance, a 501(c)(3) may publish reports critiquing abortion policies, environmental regulations, or poverty programs, or host forums on these topics, as long as such efforts remain nonpartisan and do not expressly advocate electing or defeating candidates; the IRS evaluates content for implicit campaign intervention based on timing, targeting, and distribution near elections.[10] Nonpartisan voter education, like distributing candidate questionnaires without endorsements or conducting registration drives, is similarly protected, provided it avoids favoring any party or slate.[12] This distinction preserves organizations' roles in shaping public discourse on issues while barring them from functioning as extensions of political parties, with violations risking revocation of tax-exempt status.[10]Historical Context
Pre-1954 Nonprofit Tax Policies
Federal tax exemptions for nonprofit organizations originated with the Tariff Act of 1894, which provided the first statutory exemption from income taxation for entities "organized and conducted solely for charitable, religious, or educational purposes," though the underlying income tax was later ruled unconstitutional by the Supreme Court in Pollock v. Farmers' Loan & Trust Co. (1895).[14][15] This early framework emphasized public benefit without private inurement, setting a precedent for subsequent legislation. The Payne-Aldrich Tariff Act of 1909 reintroduced exemptions from the corporate excise tax for organizations operated exclusively for religious, charitable, or educational purposes, explicitly prohibiting benefits to private individuals.[15] The Revenue Act of 1913, following ratification of the Sixteenth Amendment, formalized exemptions from the new federal income tax for similar entities, including scientific organizations and cemetery companies, provided they avoided private profit.[14][15] Subsequent expansions included the Revenue Act of 1917, which allowed deductibility of contributions to such organizations; the Revenue Act of 1918, adding exemptions for entities preventing cruelty to children or animals; and the Revenue Act of 1921, incorporating community chests, foundations, and literary purposes.[14] These policies prioritized operational exclusivity for exempt purposes, with income from related activities generally nontaxable, though unrelated business income faced no specific taxation until the Revenue Act of 1950 introduced unrelated business income tax to curb competitive advantages.[15] Regarding political activities, pre-1954 policies imposed no statutory prohibition on intervention in political campaigns, such as endorsing or opposing candidates, allowing tax-exempt organizations—including churches and charities—to participate without risking exemption status.[16][14] However, the Revenue Act of 1934 introduced limits on lobbying, denying exemption if a "substantial part" of activities involved "propaganda" or attempts to influence legislation, distinguishing legislative advocacy from electoral involvement.[14][15] This "substantial part" test remained subjective, enforced through IRS determinations, while campaign activities faced no equivalent barrier until codified in the Internal Revenue Code of 1954.[14] Overall, these policies reflected a permissive stance toward nonprofits' civic roles, balanced by safeguards against abuse for private or partisan gain.Enactment and Political Motivations
The Johnson Amendment was enacted on July 2, 1954, when Senator Lyndon B. Johnson of Texas introduced it as a floor amendment to Section 501 of the Internal Revenue Code during Senate debate on the Revenue Act of 1954.[17] The provision added language prohibiting tax-exempt organizations under what would become 501(c)(3) status from participating or intervening in political campaigns on behalf of or in opposition to any candidate for public office.[1] It passed without committee hearings, floor debate, or recorded vote, and was signed into law by President Dwight D. Eisenhower on August 17, 1954, as part of the broader tax code overhaul.[18] [19] Johnson's primary motivation stemmed from political retaliation against conservative tax-exempt groups criticizing him and fellow Democrats amid the era's anti-communist fervor.[1] Organizations such as Facts Forum, led by Dan Smoot, and the Committee for Constitutional Government, funded by oil magnate H.L. Hunt, used their nonprofit status to distribute anti-Johnson materials accusing him of being lenient on communism—claims that threatened his Senate re-election and potential vice-presidential ambitions.[18] [17] These groups, often aligned with right-wing causes, broadcast radio programs and pamphlets portraying Johnson as part of a "liberal" establishment soft on Soviet influence, prompting him to target their tax privileges to curb their electoral influence.[1] [19] While the amendment broadly applied to all 501(c)(3) entities, including churches, its origins were not principally aimed at restricting religious institutions but at neutralizing specific secular conservative nonprofits active in McCarthy-era politics.[18] Johnson, a shrewd tactician facing intra-party challenges and external attacks, leveraged the quiet amendment process to shield Democratic incumbents from nonprofit-funded opposition without broader legislative scrutiny.[17] Critics later argued this reflected a partisan effort to limit conservative voices rather than a neutral policy for nonprofit nonpartisanship, as evidenced by the lack of contemporaneous concerns over church politicking.[19]Enforcement Practices
IRS Guidelines and Interpretations
The Internal Revenue Service (IRS) interprets Section 501(c)(3) of the Internal Revenue Code, as amended by the Johnson Amendment, to prohibit tax-exempt organizations from directly or indirectly participating in or intervening in any political campaign on behalf of or in opposition to any candidate for public office.[10] This absolute ban applies to all 501(c)(3) entities, including charities, churches, and educational organizations, and encompasses activities such as monetary contributions to campaigns, public endorsements or oppositions to candidates, and biased voter education efforts that favor or oppose specific individuals.[12] Violations can result in revocation of tax-exempt status, intermediate sanctions including excise taxes on responsible parties, or denial of exempt applications.[10] IRS guidelines emphasize a facts-and-circumstances analysis to determine prohibited intervention, considering factors such as whether communications expressly advocate for or against a candidate (e.g., using phrases like "vote for" or "elect"), the timing relative to elections, the audience reach, and any evidence of bias in voter guides or forums.[10] For instance, Revenue Ruling 2007-41 illustrates that a church inserting a candidate endorsement in its bulletin constitutes intervention, as it favors one candidate over others through organizational resources.[20] Conversely, nonpartisan activities are permitted, including impartial voter registration drives, get-out-the-vote efforts without candidate references, and discussions of social issues or ballot measures that avoid linking positions to specific candidates.[12] Candidate appearances at events must remain nonpartisan, with no opportunity for campaigning, and organizations cannot imply endorsement through hosting.[10] Interpretations distinguish political campaign intervention from permissible lobbying or issue advocacy; the former targets candidates personally, while the latter involves legislative or ballot initiatives without candidate involvement.[12] Publication 557 reinforces that substantial political activity disqualifies exemption, requiring organizations to operate exclusively for exempt purposes, with voter education allowable only if conducted impartially based on objective criteria.[21] Historically, the IRS has issued election-year reminders and educational materials, such as Fact Sheet 2006-17 and the "Avoid Political Campaign Intervention" guide, to clarify boundaries and deter violations through compliance checks rather than widespread audits. For religious organizations, IRS interpretations have incorporated constitutional considerations, reflecting limited enforcement due to procedural protections under Internal Revenue Code Section 7611, which restricts church examinations absent specific evidence of abuse.[12] In a July 7, 2025, court filing in litigation challenging the Amendment's application to houses of worship, the IRS proposed narrowing its scope to exclude certain internal communications—such as pastoral discussions of candidates' positions directed solely to congregants—from constituting intervention, arguing that broader readings could conflict with the First Amendment's Establishment Clause by entangling government in religious speech.[22] This stance aligns with prior non-enforcement patterns and a 2017 executive order prioritizing religious liberty, though the IRS maintains the statutory prohibition remains intact for actions risking tax-exempt status.[12]Documented Cases and Selective Application
The Internal Revenue Service (IRS) has rarely revoked tax-exempt status under the Johnson Amendment, with only one publicly documented instance involving a church. In 1992, the IRS revoked the 501(c)(3) status of Branch Ministries, Inc., operating as the Church at Pierce Creek in Binghamton, New York, after the organization placed full-page advertisements in newspapers urging readers not to vote for Bill Clinton in the presidential election and distributed biased voter guides.[23] The revocation was upheld by the U.S. Court of Appeals for the D.C. Circuit in Branch Ministries v. Rossotti, which affirmed that the church's actions constituted prohibited intervention in a political campaign.[24] This case remains the sole known revocation of a house of worship's status for violating the amendment, despite decades of potential infractions.[25] Other enforcement actions have typically involved investigations or warnings rather than revocations. For example, in October 2004, Rev. George Regas delivered a sermon at All Saints Episcopal Church in Pasadena, California, critiquing President George W. Bush's policies on Iraq and poverty while praising aspects of John Kerry's positions, prompting complaints to the IRS.[26] The IRS launched an inquiry in 2005, but closed it in September 2007 without revoking the church's status, determining no clear endorsement occurred.[27] Similarly, the IRS has audited select churches, such as those participating in the Alliance Defending Freedom's Pulpit Freedom Initiative starting in 2008, where pastors deliberately endorsed candidates from the pulpit to test the law; however, no revocations resulted from these challenges.[12] Critics have alleged selective enforcement, pointing to the amendment's vagueness enabling disparate application, particularly amid the 2013 IRS scandal where conservative-leaning 501(c)(4) groups faced heightened scrutiny for political activities under criteria like "Tea Party" or "patriot" keywords, as admitted by then-acting IRS Exempt Organizations director Lois Lerner.[28] While the scandal primarily affected social welfare organizations rather than 501(c)(3) churches, it fueled claims of institutional bias against right-leaning entities, contrasting with apparent leniency toward left-leaning houses of worship, such as urban Black churches openly endorsing Democratic candidates without documented repercussions.[29] Enforcement data shows the IRS issued compliance letters to approximately 15,000 tax-exempt organizations between 2006 and 2010 for potential violations, but churches comprised a small fraction, with revocations near zero beyond Branch Ministries.[30] This pattern has led to arguments that political motivations, including systemic preferences in IRS oversight, influence application, though the agency maintains decisions are fact-based.[31]Core Controversies
Free Speech and First Amendment Challenges
Critics of the Johnson Amendment contend that its prohibition on 501(c)(3) organizations endorsing or opposing political candidates constitutes a content-based restriction on core political speech, violating the First Amendment's protections for free expression and, in the case of religious entities, free exercise of religion.[32] They argue that conditioning tax-exempt status—a benefit derived from taxpayer subsidies—on the forfeiture of such speech rights effectively coerces silence, drawing analogies to unconstitutional prior restraints, though courts have distinguished this from outright suppression by framing it as a permissible limit on subsidized activities. This perspective gained traction post-Citizens United v. FEC (2010), which expanded corporate speech rights in elections, prompting claims that the Amendment discriminates against nonprofits relative to other entities. A landmark early challenge arose in Branch Ministries v. Rossotti (1999), where the IRS revoked the tax-exempt status of the Church at Pierce Creek on January 19, 1995, retroactive to 1992, after the church ran full-page newspaper ads opposing Bill Clinton's candidacy and soliciting tax-deductible contributions.[33] The church alleged First Amendment violations, including free speech suppression and selective enforcement based on viewpoint, alongside claims under the Religious Freedom Restoration Act and Fifth Amendment equal protection. The U.S. District Court for the District of Columbia granted summary judgment for the IRS on March 30, 1999, ruling that the revocation was statutorily authorized under 26 U.S.C. § 7611 and did not infringe constitutional rights, as the government holds a compelling interest in preserving the integrity of the tax system by preventing partisan use of exempt funds; the D.C. Circuit affirmed in 2000.[33] More recent litigation has focused on as-applied challenges, particularly for religious organizations where endorsements intersect with doctrinal teachings on moral issues. In National Religious Broadcasters v. Werfel, filed August 28, 2024, in the U.S. District Court for the Eastern District of Texas, plaintiffs—including the National Religious Broadcasters, Intercessors for America, and two Texas churches—sued IRS Commissioner Danny Werfel, asserting that the Johnson Amendment facially and as applied chills protected religious speech, violates free exercise by burdening faith-based expression, and contravenes the Religious Freedom Restoration Act, Fifth Amendment due process, and equal protection through inconsistent enforcement.[32] The court denied a motion to dismiss on February 21, 2025, and plaintiffs filed an amended complaint that day; a motion for summary judgment followed on April 21, 2025. On July 7, 2025, the IRS and plaintiffs submitted a consent motion for judgment proposing an injunction barring enforcement against the plaintiffs for specific candidate-related communications tied to religious beliefs, effectively conceding First Amendment concerns in this context; the case was stayed July 8, 2025, pending review, with a hearing set for November 7, 2025, amid opposition from intervenors like Americans United for Separation of Church and State.[32][34] Defenders of the Amendment, including courts in prior rulings, maintain its constitutionality by analogizing to Regan v. Taxation with Representation (1983), where the Supreme Court upheld restrictions on lobbying by tax-exempt groups as a valid congressional choice not to subsidize partisan or substantial lobbying activities without implicating free speech suppression. They emphasize that the provision ensures taxpayer funds do not indirectly finance electioneering, promoting equal treatment among diverse nonprofits rather than viewpoint discrimination, and note the availability of alternative channels like 501(c)(4) organizations for political advocacy. No Supreme Court decision has directly invalidated the Johnson Amendment, though its selective application and recent IRS concessions have fueled ongoing debate over enforcement disparities and potential religious exemptions.[32]Defenses Based on Taxpayer Subsidy and Nonpartisanship
Proponents argue that the Johnson Amendment's restrictions on partisan political activity by 501(c)(3) organizations are justified as a condition on the substantial government subsidy provided through tax exemptions and deductibility. In Regan v. Taxation with Representation of Washington (1983), the U.S. Supreme Court upheld analogous limitations on substantial lobbying by such entities, ruling that tax exemptions do not constitute compelled support for all speech but rather represent a deliberate congressional choice not to subsidize certain activities.[35] The Court emphasized that denying tax benefits for lobbying does not infringe First Amendment rights, as the government may allocate subsidies to preferred endeavors like charitable work while excluding political advocacy, thereby preventing taxpayer funds—via foregone revenue—from indirectly financing partisan efforts.[36] This subsidy rationale extends to candidate endorsements under the Johnson Amendment, where defenders contend that allowing such activities would compel taxpayers to underwrite electoral campaigns through exempted organizations, distorting the tax code's intent to support public-benefit missions rather than electoral influence.[37] For instance, the estimated annual value of tax exemptions for religious and charitable groups exceeds hundreds of billions in foregone federal revenue, framing the restriction as a necessary quid pro quo to ensure these benefits align with nonpartisan goals.[38] On nonpartisanship grounds, the Amendment safeguards the operational integrity of nonprofits by insulating them from partisan entanglements that could erode donor confidence, provoke internal divisions, and divert resources from core missions to electoral disputes. Organizations like the National Council of Nonprofits assert that repeal would expose boards to factional pressures, fostering arguments over candidate endorsements that undermine collaborative effectiveness and public trust in apolitical service delivery.[6] It also mitigates risks of "dark money" flows, where tax-advantaged entities could serve as conduits for undisclosed political spending, thereby preserving the sector's role in fostering civic engagement without favoring one party or candidate.[39] These arguments hold that nonpartisanship enhances long-term organizational sustainability, as evidenced by decades of stable nonprofit growth under the rule without widespread mission drift.[40]Reform and Repeal Initiatives
Legislative Proposals Prior to 2017
Prior to 2017, legislative efforts to repeal or modify the Johnson Amendment primarily focused on restoring political speech rights to houses of worship, arguing that the provision unconstitutionally restricted First Amendment protections for religious organizations. These proposals were led by Representative Walter B. Jones Jr. (R-NC), who introduced the Houses of Worship Free Speech Restoration Act in multiple Congresses, aiming to amend Section 501(c)(3) of the Internal Revenue Code to exempt churches and associated organizations from penalties for endorsing or opposing political candidates.[41][42] The initial version, H.R. 235 in the 108th Congress (2003-2004), sought to prevent the loss of tax-exempt status for houses of worship engaging in political campaign intervention, provided such activities did not constitute the organization's primary purpose. Introduced on January 8, 2003, with 28 cosponsors, the bill was referred to the House Committee on Ways and Means but received no further action.[41] A companion bill, H.R. 235 in the 109th Congress (2005-2006), introduced on January 4, 2005, with 42 cosponsors, proposed identical protections and similarly stalled in committee after referral on the same day.[43] Jones continued introducing similar legislation biennially, including in the 110th Congress (2007-2008) as H.R. 4022 on November 1, 2007, which expanded protections to certain religious organizations beyond houses of worship but again failed to advance beyond committee referral. These efforts garnered support from conservative groups like the Family Research Council, which viewed the Johnson Amendment as a tool for government overreach into religious speech, but lacked bipartisan backing and faced opposition from those concerned about politicizing tax-exempt entities. No such bills progressed to a floor vote or enactment prior to 2017, reflecting limited congressional momentum despite repeated introductions.[17]| Congress | Bill Number | Introduction Date | Key Provisions | Outcome |
|---|---|---|---|---|
| 108th (2003-2004) | H.R. 235 | January 8, 2003 | Exempt houses of worship from Johnson Amendment penalties for campaign speech if not primary activity | Referred to Ways and Means; no further action[41] |
| 109th (2005-2006) | H.R. 235 | January 4, 2005 | Same as above, with broader religious entity inclusion | Referred to Ways and Means; no further action[43] |
| 110th (2007-2008) | H.R. 4022 | November 1, 2007 | Extended protections to qualified religious organizations | Referred to Ways and Means; no further action |