IRS says churches can now endorse candidates from the pulpit

Pastors can now promote candidates without losing their tax exemptions—so long as it’s done through the "lens of religious faith"

This newsletter is free and goes out to over 22,000 subscribers, but it’s only able to sustain itself due to the support I receive from a small percentage of regular readers. Would you please consider becoming one of those supporters? You can use the button below to subscribe to Substack or use my usual Patreon page!

---

The Johnson Amendment is effectively dead, according to a stunning admission from the IRS in a new court filing, according to David A. Fahrenthold of the New York Times.

The agency now says that pastors are allowed to formally endorse political candidates from the pulpit without any fear of losing their churches’ tax exempt statuses. It crystallizes something that was already happening in practice but which the agency, up to this point, had said was not permitted under their own rules. (Secular non-profits, however, will still be prohibited from doing what churches are apparently now allowed to do.)

Let’s back up a bit because this is a big deal.

Last August, a couple of Christian ministries sued the IRS because they wanted the ability to endorse political candidates without penalty. The complaint pitted the National Religious Broadcasters, Intercessors for America, and two random Texas-based churches against IRS Commissioner Danny Werfel.

Their complaint centered around the Johnson Amendment.

The lawsuit wanted churches to be allowed to endorse candidates without penalty (image via Shutterstock)

For the uninitiated, here’s what you need to know: Just about all non-profit groups (including charities, cause-based organizations, and churches) are considered by the IRS to be 501(c)(3)s. With that designation, the IRS is saying these groups are not looking to make a profit but rather serve a greater cause. As a way to encourage people to give money to those groups, contributions to them may be deducted on donors’ taxes. It’s theoretically a win-win for both sides.

To keep the 501(c)(3) designation, however, there are certain rules most of these groups must follow: For example, they have to fill out paperwork each year (a “Form 990”) detailing how much money they took in and how much is getting paid out and to whom. It’s a way for donors to keep tabs on the organizations and make sure they’re living up to their stated missions.

They also cannot endorse political candidates. They can always promote their partisan causes, and they can also issue “score cards” saying certain politicians uphold their values while others do not (wink wink), but they cannot explicitly tell members how to vote. That rule was proposed by then-Senator Lyndon B. Johnson in 1954, hence the name; it didn’t become an issue until decades later.

Houses of worship actually get an even sweeter deal. They are automatically granted a tax exemption (whereas secular charities have to fill out paperwork to earn the designation) and they don’t have to fill out the Form 990 at all. (Church/state separation groups have argued that the government’s preferential treatment for houses of worship in that regard is unconstitutional, but the courts haven’t agreed.)

Despite all that, plenty of conservative pastors have argued that these rules are still too onerous and they’ve deliberately tried to goad the IRS into revoking their tax-exempt status just so they can file a lawsuit over it.

For several years during Barack Obama’s presidency, for example, hundreds of evangelical churches participated in “Pulpit Freedom Sunday” where they proudly endorsed Republican candidates and then, just to make sure their actions weren’t ignored, sent videos of those sermons directly to the IRS.

The IRS had every reason to take action and revoke the churches’ tax exemptions. But they never did.

In fact, over the past few decades, the IRS has only followed its own rules once. Just before the 1992 elections, a group called Branch Ministries ran full-page newspaper ads urging people not to vote for Bill Clinton. The IRS revoked the group’s tax-exempt status. There was a lawsuit. The IRS won. (The Congressional Research Service, a government-backed public policy research institute, said another church also lost its tax exemption in 2012… but no further details are available.)

But that’s it. 70 years of the Johnson Amendment… and maybe two ministries that were punished by the IRS for violating it.

By the time Donald Trump was in office, the violations got even more egregious. There was no need for a concerted effort to endorse candidates because it was apparent to everyone that the IRS wasn’t punishing pastors for telling church members how to vote. It didn’t help that Trump claimed he got rid of the Johnson Amendment… even though that was a lie. Churches have just been endorsing candidates ever since. While some churches have also endorsed Democrats, this is overwhelmingly a conservative/Republican issue. They’re the ones with the most to lose if the Johnson Amendment was ever enforced.

In 2022, ProPublica and The Texas Tribune published a damning piece attempting to get to the bottom of what the IRS was actually doing about these churches that violated the Johnson Amendment. What they discovered was that no one was minding the store.

At least not publicly.

They found 18 churches over the previous two years explicitly violating the Johnson Amendment. (It’s almost certainly many, many more.) These were churches where the actions of the pastors weren’t at all ambiguous. If the IRS enforced its own rules, these churches would have instantly lost their tax exemptions. None of them did, and that’s because the IRS didn’t seem to care:

… The IRS has largely abdicated its enforcement responsibilities as churches have become more brazen. In fact, the number of apparent violations found by ProPublica and the Tribune, and confirmed by three nonprofit tax law experts, are greater than the total number of churches the federal agency has investigated for intervening in political campaigns over the past decade, according to records obtained by the news organizations.

In response to questions, an IRS spokesperson said that the agency “cannot comment on, neither confirm nor deny, investigations in progress, completed in the past nor contemplated.” Asked about enforcement efforts over the past decade, the IRS pointed the news organizations to annual reports that do not contain such information.

Why was the IRS acting like the CIA? No clue. They were saying they couldn’t confirm or deny investigations into churches that were openly and brazenly violating the law as if enforcing rules that were purposely broken amounted to some sort of national security issue.

It doesn’t help that the IRS now needs a high-level official signing off on such investigations—and no one was employed in that position for a while, “leaving lower IRS employees to initiate church investigations.” Nor did it help that the IRS just stopped looking at churches’ political activity for several years during the Obama administration.

As Andrew Seidel of Americans United for Separation of Church and State told the reporters at the time, churches already don’t tell the IRS how much money they’re taking in or where it’s going. By giving them enough leeway to endorse candidates, the IRS was “essentially creating super PACs that are black holes.”

Here’s how useless the IRS has been when it comes to prosecuting churches that violate their rules:

In response to a Freedom of Information Act request from ProPublica and the Tribune last year, the IRS produced a severely redacted spreadsheet indicating the agency had launched inquiries into 16 churches since 2011. IRS officials shielded the results of the probes, and they have declined to answer specific questions.

Just 16?! What is the point of reporting churches to the IRS if no one’s paying any attention to the complaints? And what does it even mean that they’ve “launched” inquiries? If hundreds of pastors are prodding the IRS to come after them by telling people how to vote, and the IRS is barely lifting a finger—and, even then, only against a few of those churches—what the hell are they doing?

Either the IRS needed to eliminate the Johnson Amendment and allow all non-profits to have the option of playing politics, or it needed to enforce the agency’s own rules even if that meant going after Christian churches.

The irony in all this is that the churches pushing to repeal the Johnson Amendment said they were doing it because they didn’t want to be beholden to the government. They said they wanted the freedom to preach whatever they wanted, including political endorsements, and they didn’t want the government telling them what they couldn’t say. And yet, by opposing the Johnson Amendment and by demanding a right to promote candidates, they’re effectively becoming tools of the Republican Party.

So that’s where we were at before today.

The Johnson Amendment was still on the books, but it was almost never enforced. And yet there was now a lawsuit pretending that the Johnson Amendment was hindering the supposed free speech rights of Christians.

The complaint argued that churches were forced into their 501(c)(3) status and were therefore “automatically silenced” by the government. For example, they said the plaintiffs wanted to speak out about the candidates’ positions—which they’re already legally allowed to do!—but they were too scared to do so because they feared the Johnson Amendment, as if their ignorance was a reason to strike down the rule. (They “engaged in self-censorship,” they wrote while the tiniest violin played in the background.)

They also said many newspapers were non-profits, yet they were able to endorse candidates—14 pages of the lawsuit were dedicated to providing examples of this.

The plaintiffs then spent pages documenting examples of churches openly endorsing Democratic candidates without penalty. Their conclusion?

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3). This is a denial of both religious freedom and equal protection.

Elsewhere, they claimed endorsements “go unchallenged by the IRS especially if the candidates in question are from the Democratic Party.”

The plaintiffs said they had to file this lawsuit because the only other option was to break the rule (by endorsing a candidate) and risk losing their tax exemption, which would stick if their lawsuit failed. So they were suing now to avoid problems down the line.

This lawsuit should have failed for a number of reasons .

First of all, the people who wanted to see the Johnson Amendment enforced wanted it applied across the board, not to benefit one side or the other. It’s not like church/state separation groups were totally fine with it if a historically Black church endorsed a Democratic candidate. We want it applied universally and think the IRS should be funded to the point where it can investigate all these allegations.

The cherry-picked examples of unenforced violations were also laughable. It’s true that there are examples of churches endorsing Democrats, but there are so many more examples of white evangelical churches endorsing Republicans, and this lawsuit seemed unconcerned about that pesky little fact. How could anyone fail to call out right-wing churches for the same behavior while arguing, with a straight face, that the IRS was selectively enforcing its rule?

The closest they came to acknowledging that their side did this too was when they mentioned Cornerstone Chapel in Leesburg, Virginia. Weeks before the 2020 election, Pastor Gary Hamrick urged the congregation to vote for Donald Trump. He didn’t flat-out say that, but he implied it by saying (of Democrats): “I don't know how, in good conscience, a Christian can vote for an agenda that is evil.”

According to the lawsuit:

Subsequently the IRS began an enforcement action against Cornerstone Chapel on the basis of implicit support or opposition of political candidates. The IRS levied and Cornerstone Chapel paid a tax penalty for violating the Johnson Amendment.

This was news to me at the time. As far as I could tell, there weren’t any media reports about that alleged investigation, much less a fine, and I couldn’t find outside verification of those claims. (Intercessors for America, one of the groups involved in the lawsuit, promoted that sermon on its website.)

But let’s suppose that was true: It still meant that that particular church, despite openly violating the Johnson Amendment, didn’t lose its tax-exempt status. They had to pay a fine of some unspecified amount (was it $1? $1,000?) and then the IRS went away.

If that was the worst example the plaintiffs could point to of the IRS coming after a Republican-supporting church, then why the hell were they suing? They have it pretty damn good!

What about the newspapers claim? If we were talking about non-profit media outlets, then guess what? They’re not supposed to make political endorsements either! The IRS should absolutely go after them. The fact that so many outlets, many of which may have endorsed Democrats, have avoided such penalties didn’t suggest bias by the IRS. It showed that the IRS was an institution that’s simply not concerned with enforcing its own rules.

That said, it wasn’t clear the Christian plaintiffs understood how some newspapers work. They cited The Philadelphia Inquirer as a newspaper owned by a non-profit while also endorsing candidates. Hypocrisy, right? Not quite, as their CEO explained to Religion News Service:

“The Philadelphia Inquirer is owned by the nonprofit Lenfest Institute for Journalism, but the newspaper remains a for-profit public-benefit corporation,” Jim Friedlich, CEO of the Lenfest Institute for Journalism, told RNS in an email. “As a for-profit entity, The Philadelphia Inquirer is permitted to publish political endorsements, as it has for decades. It does so following thoughtful research on candidate policy positions, qualifications, integrity, and track record.”

In general, though, I believe the IRS should go after non-profit media outlets and houses of worship if they’re endorsing candidates, regardless of which party they’re supporting.

Finally—and this was just a strategic issue—if the concern really was that the IRS was harming houses of worship, smarter lawyers would have brought together a variety of religious (and non-theistic!) organizations that felt muffled by the rule. By having four plaintiffs who espoused conservative Christianity, it sent the message that this was just a small group of whiners rather than a systemic issue that needed immediate fixing.

It was also interesting that this case was filed in the U.S. District Court for the Eastern District of Texas in Tyler… which happens to be a circuit where the only two judges who could theoretically hear the case, Jeremy D. Kernodle and J. Campbell Barker, are both Trump appointees. (The National Religious Broadcasters (NRB) association said the case was filed there because that’s where the two churches that are plaintiffs are located... but—let’s be honest here—those two churches were included in the lawsuit only because they’re located in the district. It’s not like the lawsuit pointed to any special reason they were involved in the case.)

So the game plan was pretty straight-forward. The Christians in this case wanted a Trump-appointed judge to strike down the Johnson Amendment. If there were appeals, they hoped this case would go all the way to the Supreme Court, where the right-wing super-majority could declare the Johnson Amendment unconstitutional and turn churches across America into extensions of the Republican Party.

But now, maybe they won’t have to do that at all.

On Monday, Jonathan L. Blacker, a Justice Department lawyer representing the IRS, in an attempt to settle this case, argued that churches could freely endorse candidates without penalty. The agency didn’t consider that politicking. Instead, they compared endorsements from the pulpit to a “family discussion concerning candidates.”

Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.

The IRS also said that their rules prohibit non-profits from participating or intervening in a campaign—which we all know means telling people how to vote. But the way the IRS was now defining those two words, participating meant taking part in the actual campaign, and intervening meant literally getting in the way of an election. Neither of those apply, the two sides said in their joint filing, when a pastor tells the congregation who to vote for.

In fact, they went on, a pastor telling his congregation how to vote is simply about religious freedom:

For many houses of worship, the exercise of their religious beliefs includes teaching or instructing their congregations regarding all aspects of life, including guidance concerning the impact of faith on the choices inherent in electoral politics. Interpreting the Johnson Amendment to reach such communications would create serious tension with the First Amendment’s Establishment Clause: That broad interpretation would treat religions that do not speak directly to matters of electoral politics more favorably than religions that do so—favoring some religions over others based on their speech to their own congregations in connection with religious services through customary channels of worship and religious communication.

They conclude that the IRS cannot go after houses of worship that tell their members how to vote:

Accordingly, the Parties request this Court enter the attached proposed order enjoining Defendants as well as their successors, agents, and employees, from enforcing the Johnson Amendment against Plaintiff Churches based on speech by a house of worship to its congregation in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.

That’s a long way of saying the IRS has declared the Johnson Amendment dead, and it can no longer even pretend to have rules preventing churches from telling people how to vote.

The order is extremely narrow, though. It would apply to houses of worship—almost all conservative Christian ones—but not to non-profits in general. That means a Southern Baptist church could tell its members to vote for a Republican candidate, but Planned Parenthood would still be prohibited from telling its members to vote for a Democratic one. That could be grounds for a larger lawsuit.

It also says political endorsements from churches are allowed “through its customary channels of communication on matters of faith.” That implies that endorsements during sermons are okay. But what’s stopping a church from posting a formal endorsement on Facebook, allowing it to spread well beyond its congregation?

Indeed, Nick Fish, President of American Atheists, sees this decision as a political tool for conservatives:

Another day, another Project 2025 wish list item checked off by Donald Trump. The Johnson Amendment, imperfectly enforced as it is, is what has kept unaccountable billionaires from funneling their money through phony nonprofits and churches to buy our elections—while getting a tax deduction subsidized by the American people.

And then there are the implications of all this. How much tithe money will now be set aside, especially by megachurches, to help elect Republicans to positions of local and state and federal power instead of on mission trips, or helping the poor, or all the other things churches like to say they’re doing for the betterment of humanity?

I’ve said this before, but revoking the Johnson Amendment would only exacerbate the political shift many churches have taken in the past decade. Conservative churchgoers would expect—perhaps demand—their houses of worship become Trump rallies by another name. A pastor who wasted everyone’s time talking about Jesus would be shoved out the door and replaced with someone like Mike Johnson who pushes cruel, bigoted Republican policies while paying lip service to the Bible.

Anyone who cares about the message of Jesus should be opposed to what the IRS is doing right now.

In response to the news, Congressman Jared Huffman, co-founder of the Congressional Freethought Caucus, wrote that “The merger of tax-exempt conservative churches with the MAGA Republican Party is complete.” Given that many Christian ministries have already declared themselves churches in order to hide their finances from public scrutiny, he added, “American taxpayers are now subsidizing both partisan (mainly GOP) politics and religion.”

Attorney Chris Line of the Freedom From Religion Foundation, which sued the IRS in 2012 only to have the agency promise in 2014 to enforce its own rules, suggested legal action would now be back in play:

Taxpayers cannot be forced to fund partisan political campaigns through tax-exempt donations.

FFRF successfully sued the IRS in 2012 to compel it to enforce its own regulations barring tax-exempt 501(c)(3) nonprofits from engaging in partisan political activity. FFRF agreed to voluntary dismissal of the case after the IRS produced evidence that it had hastened to fill a key position enabling it to resume investigations at that time.

FFRF remains committed to holding tax-exempt organizations accountable and will seek to challenge this egregious decision that undermines both the integrity of our electoral process and the rule of law.

If there’s any silver lining to this, it’s that right-wing pastors who were already promoting candidates from the pulpit can no longer pretend to be martyrs while doing it. They can’t pretend they’re David against the IRS’ Goliath. They can’t pretend to be victims. They’re getting exactly what they wanted—the chance to turn their churches into a branch of the Republican Party under their Lord and Savior Donald Trump.

The fact that their members won’t complain about it is all the proof you need that these people never game a damn about Jesus. Religion was just a tool to obtain political power.

***Update***: American Humanist Association executive director Fish Stark has now weighed in:

“This is another dark day for our democracy. The Johnson Amendment, though weakened over the years by lax enforcement, is the small but mighty dam standing in the way of a torrent of dark money influencing our elections. Now that the Trump administration has opened the door to pastors and houses of worship explicitly backing candidates for office, all bets are off. There will be little to stop billionaires from funneling money through churches to buy our elections – and they will get a tax write-off for doing it, all subsidized by American taxpayers.

“We’re discouraged, but ultimately not surprised to see the Trump administration follow through on this threat. Weakening the Johnson Amendment to consolidate political power has long been a priority for Christian Nationalists – and now they have the megaphone they’ve been waiting for for decades.

Americans United for Separation of Church and State’s President and CEO Rachel Laser issued the following statement:

“The Trump administration’s radical reinterpretation of the Johnson Amendment is a brazen attack on church-state separation that threatens our democracy by favoring houses of worship over other nonprofits and inserting them into partisan politics. It’s President Trump and his Christian Nationalist allies’ signature move: exploiting religion to boost their own political power.

“For more than 70 years, the Johnson Amendment has reflected the will of the American people, the majority of whom want to protect the integrity of our elections and shield our houses of worship from the corrupting influences of partisan politicking. And the IRS’s proposal to exempt houses of worship and religious organizations from the law but still enforce it for secular nonprofits would grant special favor to religion – an unconstitutional violation of church-state separation. We urge the court to reject the administration’s latest gambit to re-write the law through the judicial system.

The Secular Coalition for America’s Executive Director Steven Emmert focused on the opaque Super PAC concerns:

For years, the I.R.S. has looked the other way as churches increasingly endorsed political candidates from the pulpit. Now, the Trump administration has set a dangerous precedent that would allow sermons to double as campaign rallies.

There's nothing to stop wealthy donors from funneling millions into churches to support their preferred political candidate. We've already seen how billionaire donors can influence political outcomes—now religious institutions will help buy those elections, all while receiving a tax write-off.

(Portions of this article were published earlier)

---