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:

Made in the ordinary course of the 501(c)(3) organization’s regular and customary activities,
Made in carrying out the organization’s tax exempt purpose, and
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 Name	Address	Phone	Fax	Nebraska Offices
President Donald Trump	The White House 1600 Pennsylvania Ave. NW Washington, DC 20500	(202) 456-1414	(202) 456-2461	N/A
Senator Ben Sasse	404 Russel Senate Office Building Washington, DC 20510	(202) 224-4224	(202) 228-0436	LINCOLN 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 Fischer	825B 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 Fortenberry	1514 Longworth House Office Washington, DC 20515	(202) 225-4806	(202) 225-5686	LINCOLN 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 Smith	320 Cannon HOB Washington, DC 20515	(202) 225-6435	(202) 225-0207	GRAND 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 Bacon	1516 Longworth House Office Washington, DC 20515	(202) 225-4155	(202) 226-5452	OMAHA 13906 Gold Circle Suite 101 Omaha, NE 68144 Phone: 888.221.7452