The LifeWay Research poll of 1,000 Protestant pastors, conducted Aug. 30 to Sept. 18, shows that 91 percent agree that “pastors should have the right to speak freely from the pulpit without the fear of being penalized by the government.” In addition, 73 percent agree that “Congress should remove the IRS’s power to penalize a church because of the content of its pastor’s sermons.” The poll has a margin of error of approximately 3.2 percent.
“America’s pastors don’t need a federal tax agency to police their sermons,” said ADF Legal Counsel Christiana Holcomb. “Churches and their pastors have a constitutionally protected freedom to decide for themselves what they want to say or not say. This poll demonstrates that religious leaders don’t want to be burdened by the continual threat of an IRS investigation and potential penalties based simply on what they say from the pulpit.”
“As our letter to Congress explains, the Free Speech Fairness Act would bring the law into conformity with the First Amendment and restore free speech to our nation’s churches,” Holcomb added. “It will fix the Johnson Amendment, a restriction enacted in 1954 that was never intended to affect churches but has been used to intimidate them ever since.”
The Free Speech Fairness Act allows statements to be made in the ordinary course of a 501(c)(3) organization’s regular and customary activities, so long as the organization does not incur more than minimal incremental costs. Thus, the legislation respects free speech without allowing tax-exempt organizations to purchase political ads for or against a candidate for public office. It was introduced in the House by Reps. Steve Scalise (R-LA, 1st) who is Catholic, and Jody Hice (R-GA, 10th), who is a Southern Baptist pastor, and in the Senate by Sen. James Lankford, (R-OK), who is co-chair of the Congressional Prayer Caucus.
“For over sixty years, Section 501c(3) of the Tax Code (the ‘Johnson Amendment’) has forced churches to surrender First Amendment freedoms in exchange for a tax status and empowered federal bureaucrats to dictate what pastors may not say from their pulpits…,” the ADF letter states. “It’s time for Congress to restore a pastor’s right to free speech. The Free Speech Fairness Act does just that. This bill stops the IRS from being speech police, and allows pastors to speak—or not speak—as their conscience requires. America’s pastors have asked for this legislative fix, and you have the opportunity to restore their First Amendment freedoms by including this bill in tax reform.”
According to a Family Research Council Issue Brief, The Johnson Amendment is a tax provision that prevents 501(c)(3) organizations from participating in political campaigns on behalf of, or in opposition to, a candidate for public office. The Johnson Amendment is an unconstitutional restraint on free speech, and is a tool the IRS uses to threaten and censor the First Amendment free speech rights of churches, charities, and their leaders. The Johnson Amendment was passed in 1954 and since then, has caused great confusion and concern regarding what tax exempt organizations and their leaders may say about moral issues and political candidates, partly because of the IRS’s inconsistent enforcement of the law.
In fact, the IRS has even been inconsistent in individual cases. For example, the IRS investigated a tax exempt organization called Catholic Answers because it posted two e-letters questioning whether a presidential candidate who supported abortion should present himself for Holy Communion. Following its investigation, the IRS imposed a fine through excise taxes totaling $101.93 for publication of the two eletters, claiming they violated the Johnson Amendment. However, the IRS later reversed its assessment of the taxes and refunded the fine to Catholic Answers with interest, saying that the political activity was not “willful and flagrant.”
The Illinois Family Institute, which called for constituents to encourage their congressmen to support the Free Speech Fairness Act, stated in a press release, "Some of our best voices in the nation are being silenced when it comes to discussing the critical issues facing the country. It just so happens that every Sunday you can hear one of these voices speaking from the pulpit about salvation and the Bible and Jesus Christ. Unfortunately, too often those preachers fear wading onto ground that is deemed “political.”
Here’s the problem, though. These days almost everything is being made into a political issue – and that’s being done on purpose by those that wish to see an ever-growing government and an ever-shrinking private sector. When everything is politics, then issues like life, marriage, adoption, euthanasia (the list goes on and on) become off limits for discussion inside the church."
The FRC further reported, "For about a decade, pastors have willfully and flagrantly disobeyed the Johnson Amendment on Pulpit Freedom Sunday, a Sunday that is designated each year for challenging the Johnson Amendment, and sent their sermons to the IRS, inviting investigation. However, the IRS has not revoked a church’s tax exempt status for endorsing candidates or political positions from the pulpit.
In 1995, the IRS did revoke The Church at Pierce Creek’s tax exempt letter because the church purchased full-page advertisements in national newspapers. However, because churches are not required to apply for tax exempt status, revocation of the church’s tax exempt letter had no lasting effect on the church’s tax exempt status. Later, in 2005, All Saints Episcopal Church received a letter from the IRS after the pastor criticized President Bush and the Iraq war. But, in 2007, after two years of investigation, the IRS closed the investigation without revoking the IRS letter, but indicated it thought the church was wrong.
These investigations and letters regarding possible violations of the Johnson Amendment continue to have a chilling effect on free speech.
Moreover, organizations like Americans United for Separation of Church and State use the Johnson Amendment as a tool for threatening churches into self-censoring regarding political issues. During election seasons, these organizations send churches letters threatening to report the churches to the IRS if the Johnson Amendment is violated."
Specifically, the Free Speech Fairness Act addresses the shortcomings of the Johnson Amendment, which in 1954 was inserted into the Tax Code by then-Senator Lyndon Johnson. The Johnson Amendment prohibits nonprofits and churches from engaging in any activity that might be interpreted as participating in, or intervening in a campaign on behalf of, or in opposition to, a candidate for public office, including a simple oral or written statement. During the 2016 presidential campaign, President Trump frequently expressed his desire to fix the Johnson Amendment.
Lankford (R-OK) introduced the Free Speech Fairness Act (S.264) on February 7, 2017, as "a bill that gives nonprofits and houses of worship the freedom to speak about government or electoral activity without the threat of retribution from the Internal Revenue Service".
“The federal government and the IRS should never have the ability to inhibit free speech,” said Lankford. “The Free Speech Fairness Act is needed to prevent government intrusion and suppression of free speech by removing a restriction on speech that has existed since 1954. The First Amendment right of free speech and right to practice any faith, or no faith, are foundational American values that must extend to everyone, whether they are a pastor, social worker or any charity employee or volunteer. People who work for a nonprofit still have constitutional rights to assembly, free speech, and free press.”
This bill applies to all entities organized and operating under section 501(c)(3) of the Tax Code. But this legislation would not turn nonprofits and churches into political action committees. The legislation is specifically crafted to maintain the prohibition against 501(c)(3) organizations contributing money to candidates or campaigns.
Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
