“Religion, Politics, the Constitution, and Cost-Sharing Accounting: A Johnson Amendment Primer” by Benjamin Leff

Internal Revenue Service Building in Washington, D.C. Photo from the Carol M. Highsmith Archive.

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This article is part of our series on Law, Religion, and The Johnson Amendment. If you’d like to explore other articles in this series, click here.

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Some time around twenty years ago, when I was a lawyer instead of a law professor, I stumbled on a little corner of law that beautifully married my specific areas of interests in an unusually compelling way. I heard a paper on a phrase that had been inserted into section 501(c)(3) of the tax code by a floor amendment introduced by then-Senator Lyndon B. Johnson in 1959. The phrase was, “and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.” (It now includes the parenthetical “or in opposition to” alongside “on behalf of,” but it otherwise remains in the Code as was introduced). I was already a tax-law nerd, and found that kind of terribly written phrase endearing. But I was a also a charity-law nerd—the two combined making me a section 501(c)(3) nerd–and so I had read that phrase many times without thinking very deeply about it. It is the reason that charities, including churches, cannot voice their opinions about candidates for public office. These days, it is called the “Johnson Amendment,” a term that was popularized not by fans of then-Senator Johnson, but by those who think associating the phrase with Johnson makes it seem more sinister, or even evil.

From one perspective that phrase seems innocuous enough: after all, why should charities be in the business of supporting or endorsing candidates? They should stick to their charitable purpose, whatever it is: delivering aid to the poor, educating students, preaching the gospel, whatever. They shouldn’t be providing funds to help candidates run for office or choosing winners in political campaigns. But at the heart of the Johnson Amendment is a potential train wreck that comes from the constitutional protection of free speech, and possibly free religious exercise, running full-speed into the ways the federal income tax treats charitable and political expenditures. This wreck is not easy to avoid in an effective way, and so for decades the wreck has been avoided largely through some fundamentally unstable sleights of hand, and a bunch of good will.

At the heart of the impending crash are houses of worship, which made the problem all the more intriguing to me, since I had spent four years of a failed Ph.D. at the University of Chicago Divinity School thinking about how important religious ideas and institutions are in the profoundly diverse “liberal” society of the United States. So, I spent a year writing a law review article about the Johnson Amendment, and despite the fact that my article was unsatisfying to pretty much all of the twelve or thirteen people who read it, it got me a prestigious teaching fellowship and then a tenure-track job. Then, even though I couldn’t stop thinking about the topic and continued for the past sixteen years to publish on it, very little actually happened in the legal world.

The IRS barely enforced the provision, permitting some houses of worship to openly violate the law. Some commentators, including me, believed that nonenforcement was a strategy to avoid having to defend the government’s interpretation of the provision, or even the provision itself, in a court that might decide that the Johnson Amendment violates the Constitution. Then, in July of 2025, the government agreed to a “joint motion for entry of consent judgment” in a case called National Religious Broadcasters v. Commissioner of the IRS that was pending before a judge in the federal district court in Texas. That joint motion proposed that the IRS permit churches to communicate their preferences among candidates, including through an express endorsement, as long as those communications were “internal to a house of worship, between the house of worship and its congregation, in connection with religious services.” This agreement represents an express repudiation of the IRS’s own guidance on the topic, which would consider such communications prohibited campaign intervention, and so constitutes a reversal of the IRS’s long-standing position. That proposed consent judgment has not been adopted by the presiding judge (yet) and a hearing about it that was scheduled for November7, 2025, was delayed because of  a federal government shutdown.

Johnson Amendment Constitutional Law Primer

So, let me just get everyone up to speed about this constitutional-law train crash I’ve been talking about so we can understand the implications of the National Religious Broadcasters case. The First Amendment protects the right of any person to communicate ideas, including communication about the qualifications of candidates for public office. Some believe that this protection of political speech, including open criticism of incumbent office holders, is the most important application of the Free Speech Clause. And, constitutional jurisprudence (long before Citizens United, for those who have been court watching) has recognized that the persons whose speech is protected by the First Amendment includes organizations (what we call fictional persons in the law) as well as human beings (what we call natural persons). So, charities, including churches, have a First Amendment right to have and communicate ideas about the qualifications of candidates for office. But the Johnson Amendment says they can’t. So, how does that work?

Well, one very popular answer to that question is that tax statuses and the benefits they confer – like section 501(c)(3) and tax-deductible contributions – are not inherent in a person, but are a choice by that person, and so the government can grant those benefits in exchange for the recipient promising not to endorse candidates. They can offer a benefit contingent on the recipient foregoing their constitutionally protected right to engage in campaign speech. An organization that wants to endorse candidates can do so by opting into some other tax status that doesn’t have the benefits of tax-deductible contributions, but does permit campaign speech.

The problem with this solution is that it is not supported by the Supreme Court’s First Amendment jurisprudence. Instead, a doctrine that is sometimes called the unconstitutional conditions doctrine says something slightly different. In a case from 1983 called Regan v. Taxation With Representation of Washington, the Supreme Court said that speech restrictions in section 501(c)(3) are only constitutional if the overall legal framework permits some mechanism for 501(c)(3) organizations to engage in protected speech. If the government were to use section 501(c)(3) as a carrot to persuade organizations to give up their constitutionally protected speech rights, it would not be constitutional. The government is completely justified in trying to prevent tax deductible funds from being used in campaigns and can regulate 501(c)(3) organizations to advance that interest, sometimes called “nonsubvention.”  But they need to provide some mechanism for charities to communicate their views without using those funds. The mechanism described in Regan is for the 501(c)(3) organization to create an affiliate that it controls that is exempt under section 501(c)(4) (or some other provision that isn’t allowed to accept tax deductible contributions) and use that other organization to fund the charity’s speech. The necessity of this mechanism to permit speech-restricted charities to use affiliates to engage in prohibited speech is generally called the “alternate means doctrine.” These affiliations are very common in the nonprofit world and are used by organizations that both have an educational mission and engage in substantial lobbying or campaign speech. Examples include the NRA, which employs both a 501(c)(4) called the NRA and a 501(c)(3) affiliate called the NRA Foundation, and Planned Parenthood, which does the same.

The key to these affiliation structures is that they must pay very close attention to who pays for what and when costs are split between the two organizations, as they often are, compliance with the speech restrictions relies on proper allocation procedures. That’s an unglamorously technical rule – one that appeals to tax lawyers like me but possibly no one else. For example, if the NRA wants to contribute to an independent PAC that supports a candidate, it needs to make sure that it writes the check from the NRA itself (the 501(c)(4) entity), not from the NRA Foundation (the 501(c)(3)). If it wants to engage in its own campaign-related speech, it can use staff formally employed by either entity, so long as the 501(c)(4) pays for that staff’s time and properly allocates the cost of any other shared resource used to engage in the activity. This legal situation is why I say that the Johnson Amendment is where religion, the Constitution, and cost-sharing accounting meet.

But what does that mean when it comes to so-called “pulpit speech?” If churches have a constitutionally protected right to communicate their views on candidates so long as they use a proper “alternate means” to pay for such speech, what should they do if they want to speak from the pulpit? The IRS’s view, which is, frankly, probably the best plain reading of the statute passed by Congress, is that they just can’t do it. Religious leaders of a 501(c)(3) church, addressing their congregations in official worship services, simply cannot use an affiliate entity to pay for campaign-related speech. They must stay silent on the qualifications of candidates for office.

While the vast majority of American religious congregations are happy to stay out of politics for very good reason of their own, there are also good reasons that some houses of worship bristle at the requirement that they conform their pulpit speech to government restrictions—restrictions embedded in the tax code, no less! Pulpit speech is the deepest way that many religious traditions communicate most directly with their members, and so they are rightly protective of the strongest kind of freedom from government interference in this speech. Likewise, a (small-L) liberal polity takes this freedom (and perception of freedom) very seriously, because in a fundamental way, a truly liberal state depends on its citizens exercising this kind of freedom in all their meaning-constructing communities.

Therefore, the IRS should probably provide a mechanism for those houses of worship who want to engage in campaign-related speech from their pulpits. On the other hand, it is absolutely essential that this mechanism minimizes as much as possible “subvention,” since any loophole in the ban on using tax-deductible funds for campaign speech risks opening the door for a terrible distortion of the tax deduction for charitable contributions. That’s the train crash of free speech and nonsubvention. But, the trains have never really collided because the IRS has been extremely reticent to enforce its interpretation that churches must stay silent about candidates in their worship services.  

National Religious Broadcasters v. Commissioner

That is, the IRS had been extremely reticent until this past year. Then, as discussed above, in July 2025 the government proposed to dramatically change their interpretation of the law and create a limited exception to the Johnson Amendment for candidate speech, including an express endorsement, under certain circumstances. The circumstances under which this limited exception would apply involve two very different limitations: (i) that the exception only applies to houses of worship, and (ii) that the exception only applies to “internal” communications by a house of worship to “its congregation” and only “in connection with religious services.” I think of the first limitation just trying to limit the scope of the exception by reducing the sheer number of organizations to which it applies, and the second limitation trying to permit speech without authorizing the expenditure of unlimited funds. Loving alliteration as I do, I like to think of the second limitation as an attempt by the government not to slip too far down the slippery slope of subvention, which is a worthy goal, indeed.

So, as to the first limitation: this exception to the Johnson Amendment only applies to speech by houses of worship. The plaintiffs in the case included two churches, but also two religious broadcasters, and the settlement does not purport to give relief to the two religious broadcaster plaintiffs, only the churches. I personally am persuaded that if the government permits houses of worship, but no other 501(c)(3) organizations, to endorse candidates in communications to their members, that does not solve the free speech problem for secular organizations and probably violates the Establishment Clause at the same time. In other words, that limitation does not create a stable solution to the problem with the Johnson Amendment. Again, there is good reason for secular organizations to also demand a right to endorse candidates because secular charitable organizations also serve the essential role in a liberal polity of constructing deep meaning for their members (or at least some do). Houses of worship don’t have a monopoly on meaning. But I’m not an Establishment Clause expert and so I will leave that question to be decided by whatever court hears the case brought by the first secular organization that challenges this new Johnson Amendment interpretation. There is a case called SAFESPACE v. Commissioner that involves a secular organization well positioned to make the arguments I described, and it will probably make its way to U.S. Tax Court soon.

More interesting to me is the second proposed limitation: trying to avoid the slippery slope of subvention. The proposed consent judgement does that by only permitting internal communications to the congregation in connection with religious services, so it is worth trying to imagine how that might be applied in the real world. Obviously, it is worth stating clearly that the proposed limitation does prevent the extreme case of a church using tax deductible funds to make a contribution to a candidate’s campaign or presumably to fund a pure political ad. That’s not nothing, since a world without the Johnson Amendment at all would prevent neither of those things. But what exactly constitutes an internal communication to the congregation in connection with religious services? First, it is worth pointing out that the current formulation does not limit the church to only communicating its political endorsement in live face-to-face meetings, but rather clearly allows churches with large online worship services to communicate political preferences in those settings. If a church has worship services that are watched by thousands of people on the internet, then those services are fair game for campaign speech. The question arises when an organization seeks to promote those communications to an even wider audience. For example, can the organization pay to host those sermons on its website? Can it pay fees to social media companies to share excerpts from them, including excerpts that include the political endorsement? What if the cost of promoting such content rises into the millions of dollars? Imagine if an organization wanted to take out an ad to be televised at the Super Bowl sharing the excerpt from their internal communications with the whole world, at a cost of several million dollars, and those dollars came from the church and therefore were (potentially at least) donated on a tax-deductible basis? It’s possible that the IRS would rightly consider that too much subvention and successfully argue that it is outside the scope of the settlement agreement. But it’s also possible that the IRS would return to its practice of nonenforcement, and emboldened houses of worship would actively seek to push the ball down the slippery slope of subvention. The only solution to that is detailed regulations from the IRS explaining exactly how to apply this new rule. The IRS will then need to enforce those regulations, at least against the worst violations. It’s not clear that either thing will happen.

Finally, perhaps it is worth pausing to describe why nonsubvention is such an important goal. It has to do with the way income tax deductions work in the contemporary Tax Code. Under current law, a taxpayer has to choose between what’s called the “standard deduction” and “itemized deductions.” The deduction for charitable contributions is an itemized deduction. Last year, just about 90% of taxpayers took the standard deduction, and only about 10% itemized. These 10% were roughly the taxpayers with the highest income. So, the charitable contribution deduction is only meaningful for the wealthiest 10% of taxpayers, and it effectively magnifies the impact of their charitable contributions by giving a subsidy from the federal government (in the form of reduced taxes) based on how much they give. Among these wealthiest 10% of taxpayers, the deduction is what’s called an “upside down” subsidy because it is dramatically more valuable the wealthier you are. First, it gets more valuable the higher your “marginal” tax rate is, so someone who is in the 37% tax bracket gets a subsidy of 37 cents for every dollar donated to charity, while someone in the 10% bracket only gets a dime. But even more importantly, if taxpayers donate property, they can get a deduction for the value of the property and also avoid the capital gains taxes that would be due if they sold the property. This double benefit is more valuable the wealthier you are, in part because the wealthier you are the more likely you are to have a lot of highly appreciated capital gain property. So, if this charitable contribution tax deduction could be employed to pay for campaign speech, it would magnify the political power of the wealthiest Americans and have no effect on the political power of the vast majority of us. Of all the uses of a government subsidy, that seems like down near the worst.

Conclusion

So, where does that leave us? The constitutional argument is not easily avoided, and taking free speech, especially free campaign speech, seriously is important to a well-functioning liberal polity. We don’t do it for the vast majority of houses of worship, who know that political campaign speech doesn’t reflect their values or interests, and would alienate their parishioners. We do it for the small minority who believe otherwise. And, frankly, we do it because leaning in to the freedoms that make a liberal polity functional is what we do when that liberal polity is (let’s face it) under threat. What’s needed, unfortunately, is a technical tax solution that best balances the values of free speech against nonsubvention – and then an IRS willing to enforce it. ♦

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Recommended Citation

Leff, Benjamin. “Religion, Politics, the Constitution, and Cost-Sharing Accounting: A Johnson Amendment Primer.” Canopy Forum, December 3, 2025. https://canopyforum.org/2025/12/03/religion-politics-the-constitution-and-cost-sharing-accounting-a-johnson-amendment-primer-by-benjamin-leff/.

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