The Johnson Amendment was added to the Internal Revenue Code, 501(c)(3), in 1954. The amendment requires charitable organizations, including churches and affiliated groups, from participating or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office” as a condition for retaining a tax-exempt status.
The amendment is named after then-Sen. Lyndon B. Johnson. He introduced the amendment out of concern about the Facts Forum and the Committee for Constitutional Government. Both were tax-exempt organizations that had imitated the tactics of Sen. Joseph R. McCarthy in campaigning against politicians like Johnson who were more liberal in their political orientations.
In 2025, the IRS said that the Johnson Amendment ban on tax-exempt organizations from endorsing a political candidate does not apply to churches.
"When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither 'participate[s]' nor 'intervene[s]' in a 'political campaign,' within the ordinary meaning of those words," the agency said in a joint motion to a federal court to end a case involving two Texas churches and a Christian broadcasters association.
It compared such discussion within a church 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 agency said in the filing.
Potential First Amendment issues with the Johnson Amendment
Scholars have long noted that the Johnson Amendment raises at least three possible constitutional concerns. One such concern involves possible violations of the free exercise and establishment clauses of the First Amendment. A second involves concerns over First Amendment freedom of speech. A third concerns whether the government is attaching “an unconstitutional condition on a federal benefit,” namely tax-exempt status to churches who do not participate in politics (Goldfeder and Terry 2017, 233).
Those making arguments against the Johnson Amendment from First Amendment religious concerns have argued that some pastors may think it is their religious duty to speak out on contemporary issues and candidates in a manner that might not apply to similar secular beneficiaries of tax-exempt status. By contrast, those opposing a special carve-out for religious speech believe that it could promote religious establishment.
Those raising free speech concerns believe that the Johnson Amendment involves a type of viewpoint discrimination, whereas supporters of the Amendment, citing cases of Cammarano v. United States (1959) and Regan v. Taxation with Representation of Washington (1983), believe that the government has no obligation to subsidize lobbying. The decision in Citizens United v. Federal Election Commission (2010), with its emphasis on promoting political speech, may, however, work in favor of loosening or abandoning the restrictions in the Johnson Amendment.
Those opposing the Johnson Amendment as a form of unconstitutional condition further believe that it presents pastors who believe they have no choice but to speak out on candidates and issues with a Hobson’s Choice of forgoing rights or losing tax exemptions.
Challenges to the Johnson Amendment
When President Donald J. Trump was elected president in his first term, he announced his intention to repeal this amendment, which some of his supporters claimed was restricting their religious expression. He signed an executive order restricting its enforcement against any individual, house of worship or other religious organization because the individual or organization speaks on moral or political issues. But it wasn't until his second term in 2025 that the IRS told a court how it would view houses of worship who endorsed political candidates.
Religious organizations have been free to spend money on related 501(c)(4) advocacy organizations, to which contributions are not tax exempt. Moreover, the Internal Revenue Service had already issued guidelines that permit churches to engage in voter registration drives, educational activities, and even political forums that do not explicitly endorse one or another candidate.
The lawsuit giving rise to the IRS's new views arose in 2024 when the National Religious Broadcasters joined with a number of other religiously affiliated organizations and churches to challenge the Johnson Amendment in the Eastern U.S. District Court in Texas. They argued that the amendment was an unconstitutional infringement of both their free speech and free exercise rights under the First Amendment.
Citing numerous cases where other 501 (c)(3) organizations, including some newspapers that were owned by nonprofits, had not been sanctioned for endorsing political candidates, they argued that the IRS rules were being enforced in a discriminatory fashion that violated the equal protection clause.
They further argued that the regulation was “void for vagueness” and that it had a “chilling effect” on 501 (c)(3) religious entities, like those bringing the suit, that wanted to endorse political candidates but feared governmental penalties for doing so.
Enforcement of the Johnson Amendment
There are so many churches and related organizations that the government has rarely enforced the regulations very rigorously. Moreover, excessive government scrutiny of sermons could seriously erode the separation of church and state.
The government did withdraw the tax exempt status of the Church at Pierce Creek in Vestal, New York after it ran a full-page advertisement against the election of Bill Clinton in 1992, a decision that was upheld in both a U.S. District and in the D.C. Appellate Courts [Branch Ministries v. Rosotti, 211 F.3d 137, 341 U.S.App.D.C. 166 (2000)] affirming Branch Ministries v. Rossotti, 40 F. Supp.2d 15 (D.D.C. 1999).
Moreover, although it ultimately lost, the IRS significantly impacted the radio ministry of anti-communist evangelist Billy James Hargis and his Christian Crusade when in 1964 it revoked his tax exemption (Matzko 2020, 47).
Removing Johnson Amendment could increase 'dark money'
A primary concern of those who support enforcement of the current rule is that lifting the exemption on 501(3)(c) endorsements would increase so-called “dark money” by allowing individuals to use such organizations to obtain tax exemptions that are not available for other campaign contributions (Balmer 2018; Untiedt 2019).
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was published Jan. 10, 2020.