Should Churches Endorse Candidates?

During the last few election seasons, an effort known as “Pulpit Freedom Sunday” encourages pastors to publicly endorse political candidates in their Sunday sermons.  The purpose of Pulpit Freedom Sunday is to challenge the constitutionality of a federal law that restricts the political activities of churches.  The law applies not only to churches, but to all organizations that are exempt from federal income tax under section 501(c)(3).  The restriction prohibits 501(c)(3) organizations from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”[1]

Those participating in Pulpit Freedom Sunday believe that the law is an unconstitutional abridgement of the First Amendment because it restricts the type of speech that churches can disseminate from the pulpit.  However, until a church has suffered a legally-recognizable harm, such as loss of tax-exempt status, a church does not have standing to challenge the restriction in court.  The purpose of Pulpit Freedom Sunday is to generate this standing.  Churches hope that their endorsements of candidates will cause the IRS to revoke their tax-exempt status, which would provide a basis for churches to sue to invalidate the restriction. This is a risky strategy because the legal basis for challenging the restriction is not particularly strong.   

The restriction on political activity by 501(c)(3) organizations has been in effect since 1954.  It was introduced as an amendment to the Revenue Act by Senator Lyndon B. Johnson.[2]  The rationale for the including the “Johnson Amendment” in the final bill is unclear because no debate or discussion of the amendment occurred in either house of Congress.  Some believe that Senator Johnson introduced the amendment to silence two tax-exempt organizations that opposed his 1954 campaign for re-election.  A similar law prohibiting “participation in partisan politics” passed the Senate in 1934, but it was removed from the final bill because, as Representative Samuel B. Hill noted, it was “too broad.”[3]  Between 1934 and 1954 a restriction on lobbying was the only prohibition on political activity that applied to 501(c)(3) organizations.  The Johnson Amendment greatly expanded restrictions on political activity and exists today in substantially the same form as it was introduced by Senator Johnson.  Legislation is periodically introduced to repeal the Johnson Amendment, most recently in December 2011, but none has been passed by Congress. 

Courts have rarely interpreted the Johnson Amendment, which makes it difficult to predict how a court may rule on its constitutionality.  However, First Amendment case law provides a basis for courts to uphold the restriction.  Prior decisions by the U.S. Supreme Court hold that it is constitutional to restrict political activity as a condition of receiving tax-exemption.  The Court views tax-exemption as a “form of subsidy that is administered through the tax system.”[4]  Supreme Court precedent draws a distinction between exercising constitutional rights and receiving a subsidy to exercise constitutional rights.  The former is entitled to constitutional protection, but the latter is not.  In upholding the constitutionality of the lobbying restriction, the Court rejected the “notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.”[5]  The Court could logically apply the same reasoning to uphold the constitutionality of the Johnson Amendment restrictions.  Given this legal framework, a church that loses its tax exemption due to endorsing political candidates may never regain it.  Churches should thoroughly consider this risk prior to participating in Pulpit Freedom Sunday.   

The foregoing article was provided for general information.  Seek specific legal advice for your situation.  The attorneys of David L. Bea & Associates are experienced in representing churches.  If you have any questions, please do not hesitate to contact us.

© 2012 David L. Bea & Associates

[1] 26 U.S.C. § 501(c)(3).

[2] 100 Cong. Rec. 9,604 (1954).

[3] S. Rep. No. 73-558, 73d Cong., 2d Sess. 26 (1934); H.R. Conf. Rep. No. 73-1385, 73d Cong., 2d Sess. 3-4 (1934); 78 Cong. Rec. 7,831 (1934).

[4] Regan v. Taxation With Representation of Washington, 461 U.S. 540, 544 (1983).

[5] Regan at 546, quoting Cammarano v. U.S. 358 U.S. 498, 515 (1950) (Douglas, J., concurring).