Seeing the Round Corners

February 13, 2017


The recent Presidential election brought into the political arena many old traditional subjects that may or may not be due for some rethinking, refinement or outright abolishing.

The issue of churches and free speech came onto the national scene when the Republican Presidential candidate blamed former President Lyndon Johnson (D) (Johnson) for an “amendment” that “threatened religious institutions with a loss of their tax-exempt status if they openly advocate their political views.” (Actually it was not an amendment, but a law that applied to all tax-exempt charitable organizations, not just churches {Section 501(c)(3) of the federal tax code}. The law survived court challenges in 1983, 1990 and 2000 according to the Pew Research Center.)

Back in the days of Johnson, politics was pretty much controlled by those in office for decades, with the reason for such an “amendment” to “exact revenge on the foundation he [Johnson] believed supported his opponent and to prevent it and other nonprofit corporations from acting similarly in the future,” according to a Case Western Reserve Law Review article. (Johnson’s opponent was actually a millionaire rancher-oilman, supported by a conservative nonprofit group intent on limiting the treaty-making ability of the president, not a church.)

As explained by Michael Hone (in the Case Western Reserve article), the theory behind the amendment was “those corporations qualifying for the Section 501(c)(3) tax subsidy should not be permitted to directly or indirectly use that subsidy to support candidates for office.”

Patrick Daniel of the University of Texas School of Law summed up the consequences of the amendment/law this way:  “The threat of losing tax-exempt status persists as long as the law is in place, and politically-minded religious groups, particularly evangelicals, have regarded it as a suppression of free speech and an entanglement of the IRS in the operation of their religion.”

Now to present-day and the proposed “fix” to the restraint of free speech claimed by churches.

A bill introduced in Congress by Senator James Lankford and Representative Jody Hice is called the Free Speech Fairness Act. The Alliance for Defending Freedom (ADF) provides this outline of what such an act would mean, and the information is strictly the opinion of the ADF.

  1. The bills fixes but does not repeal the Johnson Amendment – the bill amends the law to allow for speech that is made “in the ordinary course of the organization’s regular and customary activities.” Allows carrying out the mission of a church, the right to speak freely on all matters of life, including candidates and elections, without fear of IRS censorship or punishment such as losing tax exempt status.
  2. Bill applies to all 501(c)(3) entities, not just churches – that means all entities organized and operating under Section 501(c)(3) of the tax code.
  3. Bill does not turn churches and charities into political action committees – bill is specifically crafted to maintain the prohibition against 501(c)(3) organizations contributing money to candidates or campaigns, allowing for speech in the “ordinary course of the organization’s regular and customary activities” so long as the organization does not incur “more than de minimis incremental expenses” for the speech, and does not allow for campaign contributions to candidates or parties.
  4. Bill is constitutionally sound – removes a very unconstitutional restriction on speech that has existed for over 60 years, and removes the IRS from the speech police business.
  5. Bill is first step in getting Congress to fix what it created in 1954 – the bill faces many more steps to the legislative process before the bill can become law and provide the relief America’s pastors and churches are seeking.

   In this writer’s opinion, the bill is way too broad in the language as to what and how far churches can get involved in politics. Churches are political entities in and of themselves, whether or not they like the connotation. Careful guidelines/rules should be promulgated to prevent abuse of free speech. Readers are urged to follow the Free Speech Fairness Act as it makes its way through the process in Washington.

The reader's comments or questions are always welcome. E-mail me at