Up for Senate reelection more than 60 years ago, Lyndon B. Johnson became gripped by fear that nonprofits were pumping large sums of cash into efforts to elect his opponent, a millionaire rancher and oilman named Dudley Dougherty.
So Johnson, a Texas Democrat, got creative.
In 1954, he pushed a new rule that would change the Internal Revenue Service tax code to say that tax-exempt nonprofits, including charities, churches and other religious groups, would be stripped of their tax status if they got involved in partisan politics, such as “directly or indirectly” supporting a candidate for office.
Since then, the Johnson Amendment has perhaps caused the greatest division among groups historians say were probably not Johnson’s prime target: houses of worship and religious leaders.
So when President Trump on Thursday signed an executive order saying he was essentially directing the IRS to stop investigating religious groups for preaching politics from the pulpit, conservative evangelicals cheered. They said it was a victory for religious freedom and free speech. They said pastors could now openly support politicians they agree with on issues like abortion and gay rights.
Conservatives also praised a section of the order designed to allow religious groups to avoid a mandate to provide contraception coverage under President Obama‘s healthcare law, which would expand an exemption won through courts.
Grateful for Executive Order’s affirmation of the need to protect religious freedom. Much, much more needed, especially from Congress.
— Russell Moore (@drmoore) May 4, 2017
.@realdonaldtrump’s Exec Order protects religion like a chainsaw protects trees.
— Rabbi Rick Jacobs (@URJPresident) May 4, 2017
At the same time, many liberal faith leaders bemoaned the president’s move on nonprofits. They said it would weaken the separation of church and state and detract from nonpartisan traditions of faith. The Union for Reform Judaism — the largest Jewish denomination in the country — said Trump’s move could open the floodgates to turn worship services into campaign rallies.
But experts say the order, which does not change rules on the books but simply tells the IRS that it can ignore them, may not have a significant impact, largely because the anti-politicking rule has not been widely enforced.
Since 2008, at least 2,000 pastors have taken part in Pulpit Freedom Sunday, a coordinated preaching effort across the U.S. in which they challenge the ban by getting political in sermons. According to Alliance Defending Freedom, a conservative legal group that promotes the event, the IRS has only investigated one church that participated.
Since 1954, the IRS has rarely investigated nonprofits for endorsing campaigns.
Americans United for Separation of Church and State says it has reported at least 124 houses of worship to the IRS since 1996 for “unlawful political activity.” But only some of those reports have resulted in IRS warnings or investigations and fewer have led groups to lose their tax status.
In 2004, the IRS launched a program called the Political Activities Compliance Initiative that investigated at least 82 religious groups for endorsing partisan politics in election cycles through 2008. But enforcement has slowed since 2009, when the IRS lost a lawsuit in Minnesota against the Living Word Christian Center, which had endorsed Republican Michele Bachmann to represent Minnesota in Congress. A judge tossed out the suit on a technicality.
In a document that was released as part of a 2014 lawsuit filed by the Freedom from Religion Foundation based in Madison, Wis., the IRS wrote to the Department of Justice that there were 99 churches that merited “a high priority examination” for violations between 2010 and 2013. It’s not clear whether all 99 were investigated.
Here are some of the most prominent cases in which the Johnson Amendment was applied.
Click here to read more.