Fixing the Issue of Church Political Speech

By Harry Hutchison, Senior Legal & Policy Columnist

As scholars Mark Goldfeder and Michelle Terry have observed, “[f]or decades there has been a fierce debate about the constitutionality and general legality of the Johnson Amendment.” Indeed, “[c]ritics say it limits the free speech and free exercise rights of religious leaders in violation of the First Amendment.” To be sure, “supporters of the status quo assert that the Johnson Amendment is an important part of the separation of church and state, without which churches, charities, and their respective membership would be left dangerously open to partisan manipulation.” 

Indeed, this little-known amendment has been used to restrict the First Amendment rights of churches and faith-based organizations for more than 60 years. Adopted without substantive debate, this amendment poses a clear and present danger to churches and faith-based charitable organizations that wish to remain faithful to their mission. At the same time, readers should remember that our nation has a longstanding history of church involvement in political activity that continues to this present moment. The importance of this mission demands that churches be encouraged to speak truthfully to America’s postmodern generation.

Against this background, it is worth noting that a proposed court settlement was filed on July 7, 2025, in federal court regarding the Johnson Amendment. Notably, the Internal Revenue Service (IRS) and a group of plaintiffs, including two Baptist Churches, the National Religious Broadcasters, and Intercessors for America, agreed that houses of worship are not prohibited from engaging in political speech. This proposed settlement was prompted by litigation filed in the U.S. District Court for the Eastern District of Texas. Although the plaintiffs filed this litigation to remove a threat to churches' freedom of speech, it is doubtful that the proposed settlement replaces the need to repeal the Johnson Amendment. 

The plaintiffs' initial filing in the Texas federal district court was spawned by opposition to an amendment introduced by then-Senator Lyndon B. Johnson that was added to the Internal Revenue Code 501 (c) (3) in 1954. This Amendment was designed to prevent churches from participating in political campaigns if they desire to maintain their tax-exempt status. To be sure, nothing in the amendment prevented churches from engaging in voter registration drives, educational activities, and even political forums that did not explicitly endorse a political candidate.

The Johnson Amendment has two distinct objectives. “First, it levels the campaign-finance playing field by preventing donors from receiving a tax deduction by passing their campaign-finance contribution through a 501©(3) organization when they could not” otherwise receive a deduction. Even Johnson Amendment critics agree that it would be a bad idea to permit political campaign contributions to flow through charities, thereby allowing donors to gain a tax deduction that would be unavailable in any other way. 

In hyper-technical terms, the Johnson Amendment campaign-finance goal is designed to uphold the non-subvention principle. Honoring  the Johnson Amendment’s first goal prevents a 501© (3) “organization from using the government subsidy implicit in [a] tax exemption and tax-deductible charitable contribution for electoral purposes.” Preventing subvention as a goal is not a controversial one because virtually all observers agree that no charitable organizations should be allowed to subvert tax law.

The Johnson Amendment’s second objective is more controversial. Scholar Benjamin Leff argues that the second effect is the source of conflict because it “impacts the speech engaged in by charities and their leaders, … in ways that arguably have little to do with tax-deductible contributions or tax exemptions.” Churches objecting to the Johnson Amendment cite this particular effect as the primary reason for their objections to the amendment.

Without getting too deeply into the weeds of tax law, readers should note that both donating money for political purposes and expressing the church’s views are considered “political campaign activity” by the IRS. What troubles churches the most is that the second goal has the effect of preventing a church from fully expressing its views. Precluding a church's expression arguably violates a church’s freedom of speech rights under the Constitution.

The Johnson Amendment’s limiting speech effect is distinct from the goal of subvention, which pertains to questions of tax-deductible or tax-exempt contributions to political candidates or parties. The speech issue is the primary source of the political and partisan divide. Equally clear, the pulpit speech issue is a crucially important subject matter for gospel-centered churches throughout America.

Readers should note that the real question at stake concerning the Johnson Amendment is the amendment’s application to ministers’ pulpit speech. If the Johnson Amendment is violated, the penalty for doing so is the revocation of the church's 501 (c) (3) status. This is a harsh penalty. However, Congress has also stipulated that an excise tax applies to political expenditures. Benjamin Leff argues that “excise taxes can be applied to supplement revocation or to replace revocation in cases in which revocation is not required.” 

Consistent with the tenor and tone of this analysis, in 2000, the District of Columbia Circuit Court of Appeals affirmed the first instance in which the IRS ever revoked a church’s tax-exempt status after a church urged Christians not to vote for then-presidential candidate Bill Clinton. This decision in Branch Ministries v. Rosotti, 211 F.3d 137 (D.C. Cir. 2000), demands additional scrutiny. 

More particularly, this decision warrants further examination after the U.S. District Court for the Eastern District of Texas decides to accept or reject the above-referenced settlement between the IRS and two Baptist Churches, the National Religious Broadcasters, and Intercessors for America. After all, it is far from clear that the proposed settlement entered into by the IRS and the plaintiffs in Texas serves to invalidate the Branch Ministries decision or necessarily limits the IRS’s power to reach a similar conclusion in the future. This means that the threat of revocation for violating the Johnson Amendment remains in effect.

Until then, proponents of church speech rights should hold off celebrating and hope for clarity. Ever since the Johnson Amendment was enacted more than sixty years ago, churches and faith-based charities have held their breath. In Part II of this Ministry Wire Post, we will explore whether churches and other faith-based organizations can exhale and breathe a sigh of relief. Until then, proponents of church freedom of speech rights should continue to advocate for the full and unconditional repeal of the Johnson Amendment and remain wary of the IRS until this issue is completely resolved.