Johnson Amendment Gets a Hearing

Even as President Donald Trump took executive action last week to provide relief from the burden of the Johnson Amendment, a congressional panel was examining the issue in light of legislation to provide a more permanent fix. During a hearing before the House Oversight Committee, Rep. Jim Jordan (R-Ohio), Administrative Rules Subcommittee Chairman, explained that the hearing was being convened to explore where the First Amendment right to free speech was being “stifled, even silenced by government.” Noting that “the First Amendment is the First Amendment for a reason” because “our founders knew the ability to criticize our government was of paramount importance,” Rep. Jordan highlighted the heavy weight of the Johnson Amendment on this constitutional right.

Christiana Holcomb, Legal Counsel at Alliance Defending Freedom, explained to the committee:

For the first 200-plus years of our nation’s history, America’s churches enjoyed their constitutional right to free speech. They guided and shepherded their people on the important issues of their day—religious, cultural, and, yes, political. They applied Scripture to every aspect of life, including candidates and elections. They were, as Dr. Martin Luther King, Jr., once said, “the conscience of the state.” And as a result, churches were at the forefront of some of the most dramatic social and political changes in our nation’s history.

She then explained how, in 1954, then-Senate Democratic Leader (later to become President) Lyndon B. Johnson (D-Texas) took aim at two secular nonprofit organizations through a provision to bar Section 501(c)(3) organizations from “intervening” in political campaigns.  That language has since been interpreted to bar ministers and nonprofit leaders from making political statements at their organizations’ functions or in their publications. She said, “Even though churches were not the target of the Johnson Amendment, they have been in its crosshairs ever since.”

At the hearing, legislation to remedy the Johnson Amendment’s chill was highlighted. The Free Speech Fairness Act, sponsored in the House by Majority Whip Steve Scalise (R-La.) and Rep. Jody Hice (R-Ga.), would clarify that political statements by 501(c)(3) organizations are permissible, as long as they are made in the ordinary course of the organization’s activities. So, while churches and charities would still be prohibited from purchasing ads or making other such targeted political expenditures, the bill would uphold free speech for organizations in the normal course of business. Holcomb said that this legislation, which NRB supports, “simply creates a relief valve for free speech, while leaving in place the remaining nonprofit boundaries.”

Other witnesses at last Thursday’s hearing included Mandi Ancalle, General Counsel for Government Affairs at Family Research Council (FRC); Catherine Engelbrecht, founder of True the Vote; and Rabbi David Saperstein, former Director of the Religious Action Center.  Significantly, Rep. Jordan noted his hope that this would be the first of more hearings focused on First Amendment freedoms.

Also of note, FRC held an event earlier in the week at which Rep. Hice spoke in more detail about the Free Speech Fairness Act. Video of that event is available here.

By Aaron Mercer, Vice President of Government Relations

Published: May 12, 2017

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