IRS Lifts Ban on Political Speech for Houses of Worship: Will All Nonprofits Be Next?

A lawsuit filed by the National Religious Broadcasters and two Texas churches resulted in a ruling last week from the IRS in a joint motion that lifts a long-standing ban on religious leaders discussing political issues before their congregations. The new rule even allows pastors, priests, rabbis and imams to explicitly endorse candidates from the pulpit.

Overall, Protect The 1st welcomes any liberation of Americans’ right to speak from IRS regulation. Remember that little phrase in the First Amendment: “Congress shall make no law”? We would welcome it if this new rule opened a larger debate about the regulation of speech through the tax code.

But first, there will be much to clarify about this rule that reduces the reach of the 1954 Johnson Amendment ban on political speeches in churches. This law was authored by Sen. Lyndon Johnson, who was smarting from conservative opposition from Texas churches to his re-election. The IRS now holds:

“When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words. To ‘participate’ in a political campaign is ‘to take part’ in the political campaign, and to ‘intervene’ in a political campaign is ‘to interfere with the outcome or course’ of the political campaign.

“Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.”

Religious leaders can thus endorse a candidate without any requirement to give an opposing candidate equal time. The clause concerning “customary channels in communications on matters of faith” includes church bulletins and other religious materials. Presumably, this also includes the websites of houses of worship, though this was not made clear.

There are, however, open questions in this new IRS policy. Among them are:

• Many worship services are live-streamed or broadcast. Lakewood Church in Houston, for example, draws 10 million viewers a week. Will the IRS make a further distinction between endorsements to congregants during an in-person service and streamed or televised events? What if some services start to look more like campaign rallies than a “family discussion”?

 

• The IRS ruling does not include non-religious non-profits. Will the Trump Administration take the next step and broaden restraints on the speech of these nonprofits?

 

• Why should the IRS stop with this one ruling? Why should the charitable 501(c) 3 version of, say, the Sierra Club or a gun rights organization be restricted in its right to speak on political issues, reserving those rights only for its “C-4” version? Is it equitable to give houses of worship speech rights typically associated with a C-4, but not a charity, nonprofit NGO or academic organization?

 

• The IRS ruling echoes language from the Johnson Amendment about “interference” in political campaigns. While it is understandable that the IRS would directly address the statutory definition of that law, the conflation of speech and political participation with “interference” is unfortunate. This is an inappropriate term for the free exercise of the most basic rights in the U.S. Constitution. 

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This new rule should be welcome by all free speech advocates. But its most salutary effect may be to spark a larger debate about the whole system of speech regulation through the tax code.

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