The Free Speech Fairness Act of 2017 (S. 264, “Fairness Act”), has been introduced by Senator Lankford (R-Okla.). If this bill is passed, it will roll back the Johnson Amendment of 1954.

The Johnson Amendment

The Johnson Amendment prevents tax exempt organizations, such as churches and charities, from engaging in speech about candidates for public office, as well as moral and political issues.

Under Section 501(c)(3) of the IRS code, tax exempt organization may not engage in any activity that might be interpreted as participating in a campaign on behalf of or in opposition to a candidate for public office.

The History of the Johnson Amendment

Here is an excellent overview of the history of the Johnson Amendment and why it was originally passed.

The Johnson Amendment amended the tax code in 1954 without any debate. It’s still limiting the free speech of churches, religious institutions, and other tax exempt organizations today.

The Johnson Amendment is Unconstitutional

There are many reasons why the 1954 Johnson Amendment violates the Constitution. The following reasons were compiled by Alliance Defending Freedom.

It Violates the Establishment Clause

The amendment violates the Establishment Clause by requiring the government to excessively monitor the speech of churches. They must do this to ensure they are not violating the restriction in the amendment.

The amendment allows the government to determine when religious speech becomes too “political.” The government has no business making such decisions.

It Violates the Free Speech Clause

The amendment violates the Free Speech Clause because it requires the government to discriminate against speech based solely on the content of the speech. In other words, some speech is allowed, but other speech is not. The Supreme Court has invalidated this type of speech discrimination for decades.

The amendment also violates the Free Speech Clause by conditioning tax exempt status on refraining from certain types of speech. Put simply, if a church wants the tax exemption, they cannot speak on all the issues addressed by Scripture. This is an unconstitutional condition on free speech.

It Violates the Free Exercise Clause

The amendment violates the Free Exercise Clause because it substantially burdens a church’s exercise of religion. The government does not have a compelling reason to burden religion in this way.

The Johnson Amendment Has Been Inconsistently Enforced

Not only is it unconstitutional, but the Johnson Amendment has been inconsistently enforced by the IRS. This has caused many non-profits confusion over how and when they may speak about political issues and candidates.

In fact, on numerous occasions, the IRS has initiated investigations of tax exempt organizations without imposing penalties or has imposed penalties only to later reimburse the fines. These inconsistencies have had the effect of significantly chilling speech that is protected by the First Amendment to the Constitution.

The Fairness Act Restores Freedom of Speech

In order to restore the free speech rights of pastors and nonprofit leaders, Congress should passe the Fairness Act. It provides for limited political activity that is:

  1. Made in the ordinary course of the 501(c)(3) organization’s regular and customary activities,
  2. Made in carrying out the organization’s tax exempt purpose, and
  3. So long as it does not incur more than de minimis (insignificant) incremental costs.

What the Fairness Act Does Not Do

The first thing to understand is that The Fairness Act does not repeal the Johnson Amendment. Put simply, the bill inserts a “relief valve” for speech into the Johnson Amendment and gets the IRS out of the business of policing the speech of America’s pastors and churches.

The Fairness Act does not turn churches and charities into political action committees. It doesn’t allow for campaign contributions to candidates or parties. It also doesn’t allow churches and charities to purchase political ads.

Contact Your Representative

You can help ensure that the Free Speech rights of pastors and nonprofit leaders are restored by contacting your representatives in Congress and asking them to co-sponsor the Fairness Act.

Representative NameAddressPhoneFaxNebraska Offices
President Donald TrumpThe White House
1600 Pennsylvania Ave. NW
Washington, DC 20500
(202) 456-1414 (202) 456-2461N/A
Senator Ben Sasse404 Russel Senate Office Building
Washington, DC 20510
(202) 224-4224(202) 228-0436LINCOLN
287 Federal Building 100 Centennial Mall North
Lincoln NE, 68508
Phone: 402.476.1400
Fax: 402.476.0605

OMAHA
9900 Nicholas St., Suite 325
Omaha, NE 68114
Phone: 402.758.8981
Fax: 402.758.9165

KEARNEY
4111 Fourth Avenue, Suite 26
Kearney, NE 68845
Phone: 308.236.7602
Fax: 308.236.7473

SCOTTSBLUFF
115 Railway Street, Suite C102
Scottsbluff, NE 69361
Phone: 308.632.6032
Fax: 308.632.6295
Senator Deb Fischer825B Hart Senate Office Building
United States Senate
Washington, DC 20510
(202) 224-6551
(202) 228-1325 LINCOLN
440 North 8th St.
Suite 120
Lincoln, NE 68508
Phone: 402.441.4600
Fax: 402.476.8753

OMAHA
11819 Miracle Hills Dr.
Suite 205
Omaha, NE 68154
Phone: 402.391.3411
Fax: 402.391.4725

SCOTTSBLUFF
PO Box 2264
Scottsbluff, NE 69363
Phone: 308.636.6344
Congressman Jeff Fortenberry1514 Longworth House Office
Washington, DC 20515
(202) 225-4806
(202) 225-5686LINCOLN
301 South 13th Street, Suite 100
Lincoln, NE 68508
Phone: 402.438.1598
Fax: 402.438.1604

NORFOLK
125 S. 4th Street, Suite 101
Norfolk, NE 68701
Phone: 402.379.2064
Fax: 402.379.2101

FREMONT
P.O. Box 337
629 Broad Street
Fremont, NE 68026
Phone: 402.727.0888
Congressman Adrian Smith320 Cannon HOB
Washington, DC 20515
(202) 225-6435
(202) 225-0207GRAND ISLAND
1811 West Second Street
Suite 275
Grand Island, NE 68803
Phone: 308.384.3900
Fax: 308.384.3902

SCOTTSBLUFF
416 Valley View Drive
Suite 600
Scottsbluff, NE 69361
Phone: 308.633.6333
Fax: 308.633.6335
Congressman Don Bacon1516 Longworth House Office
Washington, DC 20515
(202) 225-4155
(202) 226-5452OMAHA
13906 Gold Circle
Suite 101
Omaha, NE 68144
Phone: 888.221.7452

 

Nebraska Family Alliance
Nebraska Family Alliance exists to advance family, freedom and life by influencing policy, mobilizing prayer, and empowering people.