What happened to the Johnson Amendment? The Effect of Today’s Executive Order on Nonprofit Organizations
Named after former President Lyndon B. Johnson, the Johnson Amendment was a 1954 amendment to the federal tax code prohibiting 501(c)(3) tax exempt organizations from participating in political campaigns (specifically, supporting or opposing a candidate). The purpose of the rule was to prevent tax deductible money from being used to support or oppose candidates for public office.
The Executive Order signed by President Trump does not (and cannot) overturn the Johnson Amendment, since that would require Congressional action, but it appears to direct the Department of Treasury to treat religious charities and religious issues differently when considering enforcement of the Johnson Amendment. Specifically, the Executive Order instructs the Department of Treasury not to take any adverse action, such as a tax penalty or denial of tax-exempt status, against a house of worship or religious organization that speaks about political issues from a religious perspective so long as that speech hasn’t been ordinarily treated as a violation of the Johnson Amendment.
The Executive Order raises a host of questions for nonprofit organizations. Under what circumstances could the Department of Treasury consider religious organizations to be unlawfully supporting or opposing candidates? Why treat religious organizations and religious speech differently? How much political campaign speech is permissible? And how is a “religious” organization defined?
501(c)(3) organizations grappling with the implications of today’s Executive Order should know that, despite the numerous questions raised by the Order’s text, federal law – the Johnson Amendment in particular – still prohibits them from supporting or opposing candidates for office. That remains unchanged today. However, there are still a host of nonpartisan election-related activities that 501(c)(3)s can participate in, such as voter guides, candidate debates, and election protection. If you have any questions about what you can do, please feel free to contact us at [email protected] or 1-866-NP-LOBBY, and we stand ready to assist you in all of your advocacy and civic engagement efforts.
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