‘Partisan politics’: how efforts to overturn the Johnson amendment could upend campaign finance

Donald Trump has long promised his evangelical base he will undo the Johnson amendment, allowing churches and other non-profits to weigh in on and donate to political campaigns – and his path to doing so is now clearer than ever.

A provision of the tax code since 1954, the Johnson amendment prohibits all tax-exempt non-profit organizations from making political endorsements in – or offering monetary support to – political campaigns. If the president-elect succeeds in overturning it through any of a few available methods, experts say it could have the profound effect of opening up a flow of dark money into politics.

“I think it’ll have as big, or a bigger impact than Citizens United,” said Andrew Seidel, a constitutional attorney and expert on Christian nationalism. “I don’t think people are fully prepared for a country in which churches can accept tax deductible donations in the billions of dollars and then turn around and use that money for partisan politics.”

With a likely narrow majority in the US House of Representatives and the Senate, Trump has multiple avenues to challenge the provision. He could try to push Congress to take legislative action. He could attempt to unwind parts of the provision through executive action, an approach that would likely be subject to litigation. Or, he could involve the Department of Justice – which he has vowed to mobilize politically – in a key, ongoing Texas lawsuit threatening the law.

During Trump’s first term, he failed to deliver on his promise to destroy the amendment. Congress failed to roll back the regulatory measure and in an executive order gesturing at the issue, Trump only advised the treasury to take a lenient posture on the political speech of clergy – “to the extent permitted by law”.

Now, with a lawsuit filed in Texas making its way slowly through the courts, Trump has yet another avenue to chip away at legal limits on churches’ political activity. The complaint, filed against the IRS by National Religious Broadcasters, two Texas churches and the group Intercessors for America – whose mission includes a “call for godly government” – seeks to find the Johnson amendment unconstitutional.

It claims that churches are subject to “unique and discriminatory status” under the tax code and that the IRS “operates in a manner that disfavors conservative organizations and conservative, religious organizations” in enforcing the law.

Named after its author Lyndon B Johnson, the Johnson amendment is inserted into section 501(c)(3) of the tax code to prevent certain non-profits from “participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office”. The law also notes that “contributions to political campaign funds” would “clearly violate” the provision.

Some churches already flaunt the law’s requirement to refrain from endorsing political candidates – a trend that the Texas Tribune has documented. Repealing the Johnson amendment would allow churches to go further, including potentially donating to partisan causes. Because churches, unlike other non-profit organizations, are not required to file 990 forms disclosing key financial information to the IRS, such an arrangement would allow for little public oversight.

Representing National Religious Broadcasters on the complaint is Michael Farris, the former CEO of the powerful rightwing legal outfit Alliance Defending Freedom and a driving force behind the “parental rights” movement, which seeks to limit schools’ ability to teach about race, gender and sexuality in the classroom. Like the conservative “parental rights” movement, the push to do away with the Johnson amendment could chip away legal barriers separating church and state.

In the short run, overhauling the provision could, Seidel said, allow churches to function effectively as Super Pacs, accepting tax-deductible donations from politically-motivated donors and channeling them into political causes. Such a scenario could, Seidel cautions, force churches to subject themselves to the same financial disclosures that Super Pacs face.

“The church could be the subject of litigation, but then again, who’s going to be running the IRS? Who’s going to be enforcing that?” said Seidel. “It’ll be the Trump administration.”