Religious broadcasters sue IRS over rule limiting political speech for nonprofits

CNA Staff, Aug 29, 2024 / 13:04 pm

A coalition of religious broadcasters and churches is suing the U.S. Internal Revenue Service (IRS) over a long-standing rule that forbids certain nonprofits, including churches, from supporting politicians and political campaigns.

The complaint, filed on Wednesday in U.S. district court by the National Religious Broadcasters (NRB), argues that churches “are placed in a unique and discriminatory status” by the Internal Revenue Code.

That code automatically classifies almost all churches as 501(c)(3) nonprofit organizations. Since 1954, the Johnson Amendment of the tax code — named after then-Texas Sen. Lyndon Johnson — forbids 501(c)(3) nonprofits from endorsing or opposing political candidates.

Some efforts have been made over the years to repeal or loosen the Johnson Amendment, including a failed effort as part of the 2017 tax reform bill and a religious freedom executive order signed by President Donald Trump that same year.

In their lawsuit, meanwhile, the religious broadcasters — along with two churches and the nonprofit Intercessors for America — argue that the tax code punishes churches by “silenc[ing] their speech while providing no realistic alternative for operating in any other fashion.”

The plaintiffs assert in the suit that the 501(c)(3) rules are applied unevenly and that there is “no apparent rational basis for determining which 501(c)(3) organizations will be permitted to proceed and which will be penalized for violating the Johnson Amendment.”

“The IRS acts in an arbitrary and capricious manner vis-à-vis electoral statements by nonprofit organizations,” the suit says, further arguing that the agency “operates in a manner that disfavors conservative organizations and conservative, religious organizations” in its enforcement of the code.

The suit noted that not all of the plaintiffs in the filing want to openly endorse political candidates. Yet all of them “desire to communicate their views about candidates’ positions that are relevant to the issues [they] care about.”

The plaintiffs’ free speech rights are “clearly chilled” by the IRS rule, the suit argues. It posits that the Johnson Amendment violates several constitutional provisions including the First and Fifth Amendments as well as the federal Religious Freedom Restoration Act.

The suit asks the court to declare the Johnson Amendment unconstitutional.

In a press release, NRB said the plaintiffs “are making no attempt to obtain a decision prior to the 2024 election.”

“They are not filing a motion for a preliminary injunction or any other motion to expedite the litigation. They do not expect any hearings in the matter prior to the 2024 election,” the release said. 

NRB President and CEO Troy Miller said the group believes “that all nonprofits should have the constitutional right to freely express their point of view on candidates, elections, and issues on the ballot.” 

“Our challenge to the Johnson Amendment is about securing the future of free expression for all Americans, particularly those standing in the pulpit,” Miller said.

NRB and Intercessors for America are joined in the suit by the Texas churches Sand Springs Church and First Baptist Church Waskom.