By Ken Burrows
Colorado Congressman Doug Lamborn has introduced a bill in the House, H.R. 6086, that would permit houses of worship to endorse political candidates, something churches and other 501 (c)(3) nonprofits have technically been prohibited from doing for the past 60+ years. In a November 13th guest column in the Colorado Springs Gazette, Lamborn called his bill—titled the Protect Religious Expression Against Censorship and Harassment (PREACH) Act—necessary because “[church] leaders cannot state their personal opinions from the pulpit.”
Like the title of the bill, Lamborn’s description of limits on religious expression does not match reality. Religious expression by church leaders and houses of worship actually enjoys wide latitude. He also completely ignores the downsides of church politicking. This article examines both of his miscues.
H.R. 6086 targets what’s known as the “Johnson Amendment,” introduced in 1954 by then Senator Lyndon B. Johnson. This amendment to the U.S. tax code threatens houses of worship and other nonprofits with losing their tax-exempt status and possibly being fined if they support political candidates in the course of their formal activities and programs. It places no restrictions on discussions or advocacy with regard to political issues (provided such discussion is not so insidiously slanted as to constitute a de facto endorsement of a candidate). The amendment is also neutral in that it does not single out religious organizations but applies this restriction to all 501 (c)(3) nonprofits. In fact, many historians say Johnson originally called for the restriction as part of a payback to two secular nonprofits that had opposed his candidacy.
The rationale behind the tax exemption
Whatever its origins, through the years the restriction on partisan politicking by nonprofits has proven to have its own wisdom. Part of the jurisprudence behind it is that government may not subsidize political endorsements through tax-exemption, which is why this restriction applies to both religious and secular nonprofits that enjoy such exemptions. This tax exemption leads to substantial benefits accruing to religious entities. It is estimated that more than $70 billion per year is given in tax deductions to churches, religious charities, and donors to such organizations.
The original intent behind the tax-exemption benefit for nonprofits was to ease the financial burden on organizations that operate for religious, educational and charitable purposes. It was not meant to help nonprofits, religious or otherwise, more easily engage in political campaigns. The thinking goes that just as campaign organizations and PACs (political action committees) are not tax-exempt entities, nonprofits that organizationally take it upon themselves to aid a politician’s campaign should not be permitted to operate as tax-exempt either. This thinking applies whether the nonprofit is the United Way or the United Church of Christ.
Broad freedom for religious expression
Even as the Johnson Amendment precludes nonprofits from engaging in partisan politics, religious leaders still have total freedom to take stands openly on political and moral issues such as abortion, same-sex marriage, gun control, health care, and others. They can encourage voting, sponsor voter registration drives, help get people to the polls, sponsor non-partisan candidate forums, ask candidates where they stand on issues. What they cannot do is tell people whom to vote for, contribute church funds to a candidate or his/her PAC, use official forms such as church letterhead to make an endorsement, put candidate campaign signs on church property or run ads for candidates, or in any other way formally favor a candidate while acting in the name of the church.
Note, however, that pastors and other church leaders can engage in partisan politics when acting solely as individual citizens and may endorse a candidate just as any other citizen can, as long as they do not do so when acting as a representative of their church. Alternately, leaders can endorse candidates in the name of their church as long as they are willing to give up their tax exemption. No one is forcing them to accept that benefit if they don’t want to or if they deem partisan politicking a higher priority. They just can’t insist on keeping the benefit without following the rules that come with it.
As further evidence of how free religious expression remains in the political arena, it is worth remembering that religious organizations openly engage in lobbying, spending hundreds of millions of dollars per year to make their views known on Capitol Hill. This includes well known organizations such as the U.S. Conference of Catholic Bishops, the Southern Baptist Convention, and the Family Research Council. Religious voices are far from silent across the political landscape.
What faith leaders and the faithful prefer
Contrary to what he says, the restriction Lamborn sees as so nefarious in the religious realm is aimed not at religious expression per se but at partisan political expression made under tax-advantaged religious auspices. It is purposely very narrow. The distinction is important in understanding that the Johnson Amendment is not something designed to “go after” religion. Its application is neutral and secular and merely requires nonprofits of all stripes to avoid political partisanship in exchange for enjoying tax-exemption benefits.
Faith leaders have acknowledged the prudence in the Johnson Amendment. Paul Ziese, pastor of MacArthur Park Lutheran Church in San Antonio, points out that the law does not preclude congregations getting involved in social and political issues and does not keep houses of worship from civic engagement. But when it comes to partisan politics vis-a-vis pastoral guidance, he says: “We need to be structurally separate. We need to stay out of parties and personalities.” Garrett Vickrey, senior pastor of Woodland Baptist Church in the same city, says houses of worship must be welcoming to Republicans, Democrats, independents and others and avoid the “unnecessary entanglement” of partisanship.
Surveys indicate the faithful agree. A poll conducted by LifeWay Research, an arm of LifeWay Christian Resources, which is affiliated with the Southern Baptist Convention, found that 79% of Americans surveyed said it is inappropriate for pastors to publicly endorse political candidates during a church service. Nearly as many, 75%, said houses of worship should not openly support candidates at any time. (Need it be said LifeWay is hardly anti-religion?) An earlier survey conducted by Pew Research Center revealed that 66% of Americans oppose clergy endorsing candidates from the pulpit.
These majorities of faith communities see the restriction on partisanship as being in line with the proper role of a priest, minister, rabbi, or other congregation leader. In short, the faithful do not want their spiritual leaders to become partisan politicians, which would not only taint their role as a spiritual leader for all their faithful but would also inevitably split congregations along partisan lines. Ironically, H.R. 6086’s purported attempt to help churches would far more likely end up harming most of them through such divisiveness and straying from their missions.
Simon Brown of Americans United for Separation of Church and State says such survey results “make perfect sense because people of faith don’t go to their house of worship to be told how to vote.” If clergy are too pushy on politics, he cautions, “they will lose their flocks.”
The extremes, and duplicity, in H.R. 6086
H.R. 6086 is ill-conceived not just because it is a solution in search of a problem, but also because it is a measure that could spawn new problems for houses of worship and religious leaders. For instance, its provisions would not only free a congregation leader to espouse partisan preferences but also specifically stipulate that no “member” of a congregation could be prohibited from advocating for a candidate “during regular religious services.” One can only imagine how such in-the-pew politicking would have riven congregations throughout 2016.
For good measure, H.R. 6086 would also delete the injunction authority to sanction nonprofits that violate the no-partisan-politicking restriction. This injunction authority has been in place to ensure that the assets of nonprofit organizations are preserved for their charitable purposes. The statute specifically singles out for potential sanction those organizations that “flagrantly participated in…any political campaign on behalf of (or in opposition to) any candidate for public office.” Without an injunction authority, of course, basically anything goes, however flagrant.
Lamborn’s bill also embraces an inconsistency that flirts with overt dishonesty. It seeks to insert a new “Rule relating to houses of worship” in which it says such entities will be treated “as organized and operated exclusively for a religious purpose” and yet in the same paragraph says the house of worship shall not be deemed to have participated in a political campaign benefitting a candidate based on whatever content it includes in “any homily, sermon, teaching, dialectic, or other presentation made during religious services.” So the house of worship, while making a political endorsement via any of these various media, is to be seen as not doing so and still acting “exclusively” in line with its religious purposes. That’s duplicitous double-speak.
H.R. 6086 = More harm than good
In his Gazette opinion piece, Lamborn made exaggerated claims that a restriction on partisan politicking by religious leaders forces them to give up their constitutional right to free speech and is “used to silence religious groups on moral matters.” As explained in this article, these claims are false. He wrote that freedom of religion was under assault and in need of the remedies in H.R. 6086. This is propagandizing hype that ignores reality and forgoes reasoned perspective. Lamborn is not alone in resorting to such straw man strategy. President-elect Donald Trump’s amended Republican party platform, which calls for repealing the Johnson Amendment, asserts that Republicans believe the government is constitutionally prohibited from “censoring the speech of America’s churches, pastors, and religious leaders” and claims the Johnson Amendment restricts freedom “by prohibiting political speech.”
The generalized censoring they find so offensive is a phantom. The fact is that even without H.R. 6086, religious leaders keep all the rights and freedoms Lamborn and his GOP colleagues claim they are losing. They never surrender the right to take stands on all issues they choose, or the right to speak and write about them when and where they will. They are not “silenced on moral matters.” Their speech is not “censored” or “prohibited.” The only limitation is that, because they enjoy the advantages of tax-exemption, as do all 501 (c)(3) nonprofits, they cannot engage in partisan political speech and intervene in campaigns for or against candidates while acting as a representative of their church. This quid pro quo applies to all nonprofits, and the vast majority abide by it.
So to say that religious expression in America is unduly limited flies in the face of reality. Rather than imperiling religious speech, the restrictions currently in place under the Johnson Amendment serve to protect the integrity of houses of worship, dissuading them from replacing pastoring with politicking. Churchgoers and many church leaders generally agree. They realize that H.R. 6086 would likely compromise their integrity while pitting congregants against one another and/or against their clergy, resulting in more harm than good. Staying apart from partisan politics also enables religious groups to remain autonomous and not beholden to any particular candidate or party.
H.R. 6086 is being sold as a sure plus for religious leaders. But a closer examination with thoughtful reflection, big-picture perspective, and long-term vision reveals that the bill harbors a Pandora’s box of divisiveness and other damaging consequences to the very religious sector it purports to champion. That’s a box better left closed.