H.R. 1

"The Tax Cuts and Jobs Act"

The House Version of the Bill:

The House bill would allow endorsement activity to permeate throughout tax-exempt organizations, transforming them from charitable organizations to tax-exempt partisan campaign organizations.

Section 5201 of the bill would allow all tax-exempt organizations—including houses of worship, foundations, and charitable nonprofits—to make statements endorsing or opposing candidates for public office so long as those statements are made in the “ordinary course” of carrying out their tax-exempt purpose and do not incur more than “de minimis incremental expenses.” Although this might sound like a narrow exemption to current law, it is actually so broad, it makes the Johnson Amendment nearly meaningless.

For example, while preaching to his congregation, a pastor could endorse one or more candidates and then the church could post a video of that sermon on its website, email it to parishioners, and distribute it publicly on social media. In addition, the president of major university could insert an endorsement into its weekly newsletter that is emailed to current students and its massive alumni network.

Changing the law would create a substantial loophole in campaign finance law that could be exploited by those seeking to influence elections. It would allow people to escape transparency rules and get tax-deductions for donations that will be used to influence elections.

Changing the law could turn tax-exempt organizations into tools of candidates and political campaigns. It would also lead to divisions within houses of worship and charitable organizations, as members, donors, and those they serve become split along party lines. 

House Leadership introduced their proposal on November 2, 2017, and the House Ways and Means Committee took up the bill days later, on November 6. The original bill would have allowed houses of worship (but not other tax-exempt organizations) to endorse candidates. During the committee markup, Rep. John Lewis offered an amendment to strip Section 5201 from the bill and return the Johnson Amendment to its full effect. The vote failed with a vote of 16-23. Then, as the markup was wrapping up, Rep. Kevin Brady (R-TX) offered a 30-page amendment. It included language that expanded Section 5201 to all tax-exempt organizations. The amendment was adopted on a party line vote. The House passed its bill on November 16, 2017. 

The Senate Version of the Bill:

The Senate bill did not include language to repeal or weaken the Johnson Amendment. 

The Final Bill:

Because the Senate and House bills differed, the two chambers had to work to merge the bills into one final bill. On Thursday, December 14, Senator Ron Wyden's (D-Ore.) office confirmed that the Johnson Amendment language would not be in the final bill. The bill passed by both the House and Senate and signed into law does not contain any language affecting the Johnson Amendment. 

Watch the House COmmittee Debate:

H.R. 88

“The Retirement, Savings, and Other Tax Relief Act of 2018”

The House Version of the Bill:

Section 507 of the bill would allow all tax-exempt organizations—including houses of worship, foundations, and charitable nonprofits—to make statements endorsing or opposing candidates for public office so long as those statements are made in the “ordinary course” of carrying out their tax-exempt purpose and do not incur more than “de minimis incremental expenses.” Although this might sound like a narrow exemption to current law, it is actually so broad, it makes the Johnson Amendment nearly meaningless.

FY2019 Financial Services and General Government Appropriations Bill

the house version of the bill:

Section 112 of the Financial Services and General Government (FSGG) Appropriations bill, which provides funding for the District of Columbia and various federal agencies, including the IRS, would make it incredibly difficult for the IRS to enforce violations of the Johnson Amendment by houses of worship. It would require a determination by the IRS Commissioner, notification of two committees in Congress, and a 90-day waiting period before tax exempt status could be denied. These hurdles would slow down, if not entirely halt, any investigations and further politicize them. In addition, because this special treatment applies to houses of worship and not to secular organizations, the provision likely violates the First Amendment of the U.S. Constitution. 

On June 13, 2018, the House Appropriations Committee took up the bill. 145 national organizations signed onto a letter telling members of the committee to oppose the inclusion of this language in the appropriations bill. Representative Debbie Wasserman Schultz (D-FL) and co-sponsor Barbara Lee (D-CA) offered an amendment to strip the provision. The measure failed with a vote of 21-28.

The appropriations bill was merged with six other appropriations bills and the House adopted the bill on August 1, 2018.

The Senate FSGG appropriations bill, which passed out of committee on June 21, 2018, does not contain the troubling house language.

The Committee Vote: 

Yes: Aguilar, Bishop, Cartwright, Clark, Cuellar, DeLauro, Kaptur, Kilmer, Lee, Lowey, McCollum, Meng, Pingree, Pocan, Price, Quigley, Royal-Allard, Ryan, Serrano, Viscolsky, Wasserman Schultz

No: Aderholt, Calvert, Carter, Cole, Culberson, Diaz-Balart, Fleischmann, Fortenberry, Frelinghuysen, Graves, Harris, Herrera Beutler, Jenkins, Joyce, Moolenaar, Newhouse, Palazzo, Roby, Rogers, Rooney, Rutherford, Simpson, Stewart, Taylor, Valadao, Womack, Yoder, Young

WHAT MEMBERS OF THE COMMITTEE SAID:

"One of the characteristics of American religious institutions that has made them so sacred is that they are separate from government and separate from campaign politics. If Americans want to get involved in partisan elections we know how to do that. . . . To preserve their sacred place in American society, houses of worship must stay above the political fray and refrain from endorsing candidates for political office." — Rep. Debbie Wasserman Schultz (D-FL)

"Americans oppose allowing places of worship to endorse political candidates. Americans and our Constitution are on the right side of this issue."  — Rep. Barbara Lee (D-CA)

“We should think very carefully before we legitimate using religious institutions as a conduit for political contributions or for candidate or party centered political advocacy. That would threaten rather than enhance the freedom of these institutions. And I think it would lead to great cynicism about the activities of these institutions.” — Rep. David Price (D-NC)

“Allowing this section to become law would put at risk the ability of churches and other places of worship to continue to serve as nonpartisan places for worship, reflection, and community rather than as another political battleground.” — Rep. Katherine Clark (D-MA)

"[P]laces of worship are intended to be just that. They inspire belief and they build community. By repealing . . . the Johnson amendment, divisive themes are introduced into the unified environment that religious organizations strive to build, thereby undermining their core objectives." — Rep. Mike Quigley  (D-IL)

FY2018 Financial Services and General Government Appropriations Bill

the house version of the bill:

The Financial Services and General Government (FSGG) Appropriations bill for FY2018 included language that would have make it incredibly difficult for the IRS to investigate houses of worship that have violated the Johnson Amendment. It would have required consent from the IRS Commissioner for each investigation, notification to two committees in Congress and a 90-day waiting period before such investigations could commence. These hurdles would have slowed down, if not entirely halted, any investigations and further politicized them. In addition, because this special treatment applied to houses of worship and not to secular organizations, the provision likely would have violated the First Amendment of the U.S. Constitution. 

On July 13, 2017, the House Appropriations Committee took up the bill. 108 national organizations signed onto a letter telling members of the committee to oppose the inclusion of this language in the appropriations bill. Representative Debbie Wasserman Schultz (D-FL) and co-sponsor Barbara Lee (D-CA) offered an amendment to strip the provision. Despite having bipartisan support, the measure failed with a vote of 24-28. The bill, including Section 116, was later approved by and passed the full committee, and was then included in the omnibus spending bill that passed the House.

the senate version of the bill:

The Senate version of the bill did not contain language affecting the Johnson Amendment. 

the final bill:

Unable to pass its fiscal year 2018 funding bills, Congress has been funding the government with bills called "continuing resolutions," (CRs) which provide funding to run the government while the House and Senate continue to hash out their final bill. The current CR was set to run out Friday, March 23, 2018. We fought to ensure that this bill did not include the House language that would weaken the Johnson Amendment. The final omnibus spending bill revealed on March 21 and passed on March 23 did not contain language to weaken the Johnson Amendment. 

Watch the House Committee Debate:

What Members of the Committee said:

"Regardless of our political stripes and colors, no one wants our charities or houses of worship to be torn apart by partisan campaign politics." — Rep. Debbie Wasserman Schultz (D-FL)

“What we do not want though is to legitimate using religious institutions as simply a conduit for political contributions or for candidate or party-centered political advocacy. . . [We should] all consult our common sense and our common experience on this matter before we take the step to bring partisan, candidate-centered politics into our churches.” — Rep. David Price (D-NC)

S. 264 / H.R. 781

“The Free Speech Fairness Act”

What The Bill Does:

In January 2017, Senator James Lankford (R-OK) introduced this bill on the Senate side and Representatives Steve Scalise (R-LA) and Jody Hice (R-GA) introduced it on the House side. These bills are identical to a bill introduced last Congress in conjunction with Pulpit Freedom Sunday, an annual event during which certain groups try to persuade religious leaders to break federal law and endorse candidates for public office.

The bill does not fully repeal current law, but significantly undermines it. It would allow tax-exempt organizations—both houses of worship and secular nonprofits—to make statements endorsing or opposing candidates for public office so long as those statements are made in the ordinary course of carrying out their tax-exempt purpose and don’t incur more than de minimis incremental expenses. Although this might sound like a narrow exemption to current law, it is quite broad.

Under this bill, an organization could endorse one or more candidates in all of its activities, correspondence, and other written material. For example, the president of a large university could endorse a candidate in its weekly alumni email. A pastor could include an endorsement of a candidate in his sermon every Sunday, in the lesson taught at each Bible study, and in every bulletin or newsletter his church issues. This would allow partisan campaign politics to pervade every aspect of the organization, fundamentally changing its purpose and character.  

The Status of the Bill:

This bill was added onto the House version tax reform package, but was removed before the final bill went to the House and Senate floors.

Read AU's Congressional Testimony Opposing this Bill.

H.R. 172

What The Bill Does:

This bill, introduced by Representative Walter Jones (R-NC) in January 2017, would completely repeal the law that prohibits tax-exempt organizations from endorsing or opposing candidates. Both religious and secular tax-exempt organizations could “participate in, or intervene in (including the publishing or distributing of statements), any political campaign” supporting or opposing a political candidate for public office. Jones has been introducing this bill for more than 15 years. In 2002, the House actually voted down this bill 178-239, with 46 Republicans voting against it. 

The Status of the Bill:

The bill has not moved. 

Read AU's Congressional Testimony Opposing this Bill.