Academic journal article The University of Memphis Law Review

To Repeal or Not Repeal: The Johnson Amendment

Academic journal article The University of Memphis Law Review

To Repeal or Not Repeal: The Johnson Amendment

Article excerpt

I.INTRODUCTION

"An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. 'n

In a recent address to the National Prayer Breakfast, President Donald J. Trump reiterated his promise to get rid of the Johnson Amendment and "allow our representatives of faith to speak freely and without fear of retribution."2 The Johnson Amendment is a piece of 1954 legislation that regulates what tax-exempt organizations-including churches and religious institutions-can say and do when it comes to politics. The Johnson Amendment states:

corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation . . . and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.3

For decades, there has been fierce debate about the constitutionality and general legality of the Johnson Amendment. Critics say that it limits the free speech and free exercise rights of religious leaders in violation of the First Amendment,4 while supporters of the status quo believe that the Johnson Amendment is an important part of the separation of church and state, without which churches, charities, and their respective memberships would be left dangerously open to partisan manipulation.5

In four parts, this Article will take a non-partisan, in-depth look at the issue. Part II will provide a short history of the Johnson Amendment's passage and its subsequent interpretation. Part III will explore the arguments regarding its constitutionality. Part IV will examine some of the current reform and repeal actions being taken. Finally, we offer some practical recommendations for the future.

II. THE HISTORY AND APPLICATION OF THE JOHNSON AMENDMENT

A.Development and Passage

Historically speaking, until the 1960s, our nation had a longstanding practice of church involvement in the political activity of the day.6 Proponents of the Johnson Amendment who try to make arguments from tradition (that is, that the Johnson Amendment has been here for a while, and therefore it must be fine) must first acknowledge that it was once commonplace for pastors to preach about political issues and candidates:

Historically, churches had frequently and fervently spoken for and against candidates for government office. Such sermons date from the founding of America, including sermons against Thomas Jefferson for being a deist; sermons opposing William Howard Taft as a Unitarian; and sermons opposing Al Smith in the 1928 presidential election. Churches have also been at the forefront of most of the significant societal and governmental changes in our history including ending segregation and child labor and advancing civil rights.7

In 1862, President Abraham Lincoln and Congress created the position of commissioner of Internal Revenue, whose job was to collect an income tax that would be used to pay for the war.8 Congress repealed the income tax a decade later, then revived it in 1894, and the Court ruled in 1895 that the income tax was unconstitutional.9 It was only after Wyoming ratified the 16th Amendment in 1913 that the necessary three-quarter majority of states was met, giving Congress the constitutional authority to enact an income tax.10 It was in that year that taxpayers first saw the now-infamous Form 1040, levying a tax of 1% on incomes greater than $3,000 and a 6% surtax on incomes greater than $500,000. …

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