The 1954 Johnson Amendment, named for then-Texas Sen. Lyndon B. Johnson, has long barred nonprofits, including churches, from endorsing or opposing political candidates.
But according to reporting from the Texas Tribune and ProPublica, that hasn’t stopped many church leaders from politicking as of late. And while the actions could prompt a place of worship to lose their tax-exempt status if found to violate the amendment, the IRS has largely shied away from cracking down.
Investigative reporter Jeremy Schwartz has been following this story and spoke with the Texas Standard about his findings. Listen to the story above or read the transcript below.
This transcript has been edited lightly for clarity:
Texas Standard: How many examples of recent church violations of the Johnson Amendment did you find?
Jeremy Schwartz: Well, we embarked on this a couple of months ago, and the examples have kept pouring in even after we finished our story. We are getting almost inundated with more examples from Texas and across the country. But for this story, we focused on 18 examples that three tax law experts confirmed with us, that each of them represented a violation of the Johnson Amendment.
What are some of these things that pastors have said that are violations?
Basically, under the Johnson Amendment, churches and pastors do have some freedom in terms of political activity. They can talk about issues like abortion [and] gay rights. They can advocate for ballot measures. What they can’t do is endorse specific candidates or oppose specific candidates. And what we’ve been seeing is that, especially in the last two years and even a ramp-up in recent months, pulpit endorsements at all levels of government – from school board to city council, up to congressional candidates – are becoming ever more common in Texas pulpits.
As you said, not every interaction between a church and a candidate even is a violation of the Johnson Amendment. Recently Lt. Gov. Dan Patrick was invited by two churches to give a sermon. And that’s OK?
Well, it depends. Candidate visits are probably one of the most common areas where church and politics converge. And it really depends on what is said during that visit. If the pastor is able to introduce a candidate, [and] if he does it in a neutral way without calling on his parishioners to vote for that candidate, the candidate is certainly welcome to come and talk to the congregation.
One thing, though, that the tax code calls for – that is very lightly enforced – is that the churches are supposed to issue that same invitation to all the candidates running for a certain position. So under the strict rules of the law, both the lieutenant governor and his opponent should have been invited to those church services.
The IRS is in charge of enforcement here. How has that been going in recent years?
It really hasn’t been going in recent years. The service, during a sort of brief moment between 2004 and 2008, did attempt to sort of systematically enforce this rule. They investigated close to 100 churches across the country for making endorsements from the pulpit. They have the power to revoke a church’s tax-exempt status, which is sort of the nuclear option when dealing with churches. But in that case, they mostly sent warning letters to churches and told them not to do it again.
Since then, from all we can gather and from what our reporting has shown us, enforcement has been quite minimal. We received a document through the Freedom of Information Act that indicates that the number of violations that we’ve found just in a couple of months was more than the agency had investigated over the previous 11 years. So it’s really been a vacuum when it comes to enforcement.
There have been calls – most famously, perhaps, by former President Donald Trump – to do away with the Johnson Amendment. Is that how most people feel?
No, it isn’t, actually. If you look at polling, the vast majority of Americans do not want their church leaders endorsing candidates and getting that heavily involved in politics. And there are also quite a number of church leaders themselves who do not want to be pulled into the pressures of being expected to endorse a candidate, which potentially leads to alienation of half your congregation, if you do happen to have one of the, probably increasingly rare, mixed congregations.
The one area that doesn’t quite agree with that is among evangelical churchgoers. And a slight majority of them, 52%, do want churches and pastors to have more freedom to endorse candidates. And in fact, that is in our research where we did find the majority of the violations.
Well, what is the bottom line here, you think? Are some churches really getting more brazen with this? And does there seem like there’s an appetite from the IRS for enforcing the Johnson Amendment?
It will be interesting to see. Just in March, the agency very quietly revised its rules for investigating churches. Part of the reason it had been so inactive the last 10 years was that its rules were in flux after a court decision. But the agency in March got that settled, and so what we’re told is they do have a clear procedural path to investigating churches. The big question, as you say, is, do they have that appetite? There are certainly many churches that are betting that they do not and are continuing to flout the prohibition.