By Mark Pattison
Catholic News Service
WASHINGTON (CNS) — While lawmakers often have bills named after them — the Hatch Act and the Glass-Steagall Act, for instance — very few lawmakers tend to have amendments to bills named after them.
One notable exception is the Hyde Amendment, named for the late Congressman Henry Hyde, which bans federal tax funding for most abortions. Another is what’s known as the Johnson Amendment, which bans churches and nonprofit organizations of all types from participating in partisan political activity at the risk of losing their tax-exempt status.
"The political campaign intervention prohibition was introduced by then-Sen. Lyndon B. Johnson (D-Texas) during Senate floor debate on the 1954 version of the tax code," said the introduction to the 2016 edition of "Political Activity and Lobbying Guidelines for Catholic Organizations," issued July 1 by the U.S. Conference of Catholic Bishops’ Office of General Counsel. This year’s version runs 44 pages and includes sections on social media usage.
"LBJ appears to have been reacting to support provided by certain tax-exempt organizations to Dudley Dogherty, his challenger in the 1954 primary election," the document said. "There is no legislative history to explain definitively why LBJ sought this amendment to the code. However, there is no evidence that religious organizations were his targets."
The Republican National Convention platform set its sights on doing away with the Johnson Amendment to section 501(c)(3) of the Internal Revenue Code. "We support repeal of the Johnson Amendment, which restricts First Amendment freedoms of all nonprofit organizations by prohibiting political speech," the plank says on page 27 of the 58-page platform statement.
Republicans have tried since they reclaimed both houses of Congress in 2011 to get the amendment repealed, but to no avail. One group, the Alliance Defending Freedom, has led a series of "Pulpit Freedom Sunday" days hoping some preacher’s sermon is recorded and sent to the Internal Revenue Service to trigger an investigation and a subsequent court case to test its constitutionality, but no cases have yet been tied to that activity.
There’s a reason, says the alliance’s general counsel. Erik Stanley. "The procedures the IRS uses to audit churches were declared unlawful in 2009," he told Catholic News Service in a July 28 telephone interview. "They’ve never put together any new procedures." Another Pulpit Freedom Sunday is set for Oct. 2. The alliance "quit counting" the number of pastors taking part, Stanley said, when the total hit 4,000 after six years.
Some individual religious organizations have been subjected to IRS scrutiny after allegations that their political activity crossed the line. But no denomination of any size has ever had its tax-exempt status revoked.
The closest call for a major institution was in 1983, when a court ruled that Bob Jones University, a fundamentalist college in South Carolina, could lose its tax-exempt status if its policies violated "fundamental national public policy." The Christian Coalition was denied nonprofit status by the IRS precisely because of its political activities.
Some Christian television outlets have had their tax-exempt status overturned, or revoked for certain years, because of political activity. Individual houses of worship also have had their federal nonprofit status yanked. It can be a big deal, as donors’ contributions then cannot be claimed as charitable deductions on their own tax returns, which could lead to fewer donations.
"Churches may invite candidates to appear at services and other functions so long as no bias for or against a candidate is exhibited," noted a 2008 Congressional Research Service study by American Law Division attorneys Erika Lunder and L. Paige Whitaker, "Churches and Campaign Activity: Analysis Under Tax and Campaign Finance Laws."
"If an individual appears as a candidate, factors that may indicate the activity was permissible include the following: other candidates were provided an equal opportunity to speak; the church made clear it was not supporting or opposing any candidate; and no fundraising occurred," Lunder and Whitaker said. Even so, some Sunday morning appearances by politicos at pulpits are criticized by their ideological opponents as thinly veiled endorsements by pastors.
In a 1972 case in which a Protestant ministry’s tax-exempt status was revoked, the 10th U.S. Circuit Court of Appeals said, "Tax exemption is a privilege, a matter of grace rather than right." The court added speech limitations did not violate the organization’s free-speech rights, saying the ministry had the choice of limiting its activities in exchange for its tax-exempt status.
Restrictions on churches’ political activity aren’t placed solely by the government. St. John Paul II, early in his papacy, issued an order barring priests and religious in the United States and elsewhere from running for office. Afterward, Jesuit Father Robert Drinan had to resign his seat in Congress, priests were suspended for direct participation in elections and party politics, and one nun in Michigan left her religious order rather than step down from a state government cabinet position whose budget included abortion funding.
The USCCB Office of General Counsel has, for the past several presidential election cycles, sent dioceses a notice on what is permissible, and impermissible, in terms of political activity as a federal 501(c)(3) nonprofit organization.
A USCCB spokeswoman said Anthony Picarello, a USCCB associate general secretary, who heads the Office of General Counsel, declined comment for this article.
Father Frank Pavone, national director of Priests for Life, is a backer of the GOP plank.
"It is ironic that many church entities fight for religious freedom against the HHS (Health and Human Services) mandate (on contraception), but tolerate quite well the restrictions of religious freedom posed by the Johnson Amendment," he said in a July 19 statement.
"It’s time to wake up. We are not saying the church should start endorsing candidates," Father Pavone added. "We are saying that that the decision about how much to say regarding elections is a decision that should be made by the church, not the government."
Rabbi Jack Moline, president of the Interfaith Alliance, takes a contrary view.
"Allowing houses of worship into political campaigns will damage religious freedom by inviting the rewards and punishments of patronage into the pulpit," the rabbi said in a July 22 statement.
"Do worshippers believe that tearing down the wall between religion and government will allow endorsements to flow only one way? Nonsense. Keeping partisan politics out of religion is every bit as important as keeping religion out of politics."
Just as some call for allowing politicking by churches without them fearing the loss of their tax-exempt status, others call for stripping churches’ and other nonprofits’ tax-exempt status altogether.
Journalist Mark Oppenheimer, in a 2015 essay in Time magazine, said the tax-exempt wealth some nonprofits accumulate in their endowments and properties place an undue tax burden on the rest of the populace. Another reason for getting rid of it, he said, is the "subsidies" taxpayers are forced to support for organizations they wouldn’t give their own money to, ranging from Planned Parenthood to the National Rifle Association.
Oppenheimer also made a religious argument for discontinuing the exemption: "The religious exemption has forced the IRS to decide what’s a religion, and thus has entangled church and state in the worst way. Since the world’s great religion scholars can’t agree on what a religion is, it’s absurd to ask a bunch of accountants, no matter how well-meaning."
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