Business Law
December 20th, 2019
The Johnson Amendment: Good Law or Constitutional Overreach?
Since being enacted in 1954, the Johnson Amendment has been the subject of
intermittent controversy throughout the years. While some support the provision as a
necessary safeguard to ensure that charitable and religious organizations remain
apolitical, opponents of the amendment argue that this is an unconstitutional restriction
of a nonprofit’s right to free speech under the First Amendment. The provision has
often come in and out of the public’s conscience, but has recently been brought back
into the spotlight following a 2017 promise by President Trump to repeal the
amendment. Though the President signed an Executive Order softening the legal
ramifications of the amendment, a full repeal of the provision failed to make it into the
final version of the Tax Cuts and Jobs act of 2017, allowing the amendment to survive
1
.
As Aristotle once noted, “law is order and good law is good order”, but in the case of the
Johnson Amendment, many competing, seemingly contradictory factors, including
freedom of speech versus the separation of church and state, render this statement an
oversimplification. Though only a small portion of the tax code, the Johnson
Amendment is a layered, complex law with wide ranging impact on the operation of
organized religion, nonprofits, and the US electoral system, and those who seek to
remove it from the tax code must have a nuanced understanding of its ramifications.
Before delving into the arguments for and against the amendment, it is important
to understand not only the purpose of the Amendment, but also the historical context
1
Douglas, William. “GOP Plan to Ease Law on Political Speech from the Pulpit Gets Lukewarm
Reception.” McClatchy Washington Bureau, November 2, 2017.
https://www.mcclatchydc.com/news/politics-government/congress/article182390976.html
behind its creation. The Johnson Amendment is named for its sponsor, the then–
Senator Lyndon B. Johnson. The Amendment, added to the tax code in 1954, prohibits
501(c)(3) organizations, including charities, colleges, and religious groups from
endorsing or campaigning against specific political candidates. This is part of the
exchange in which these groups receive tax-exempt status, a feature that is essential to
many nonprofits survival.
2
While the provision has become an important player in
attempting to keep politics out of nonprofits, it ironically was introduced by Senator
Johnson as a form of political retribution. In his Senate reelection campaign, Johnson’s
opponent was financially supported heavily by two wealthy tax-exempt organizations,
and while Johnson would win reelection handily, he decided to use his clout as Majority
Leader to eliminate 501(c)(3) direct participation in elections. Additionally, the passage
of the amendment bypassed the traditional legislative process, skipping the committee
process, having no explanatory bill memo, and even being passed via voice vote,
leaving no record of who voted or how.
3
It is also important to note that this amendment
does not prevent 501(c)(3)’s from supporting issues being tackled by candidates
