Despite law banning churches’ election participation, IRS claims they can endorse
Americans United calls agency’s view a ‘radical reinterpretation’
Since 1954, churches and other nonprofit organizations that fall under Section 501(c)(3) of the Internal Revenue Service code have been prohibited from participating in elections for public office. Because of the law, ever since then, with a few defiant exceptions, churches have refrained from endorsing candidates for U.S. president and other elective offices.1
But now, suddenly the IRS says, in effect, that the law has been misinterpreted all this time. In papers filed yesterday in a federal Texas court, the IRS said that when “properly interpreted,” churches are in no danger of losing their tax-exempt status if they endorse candidates as long as they make their endorsements through their “customary channels of communication on matters of faith in connection with religious services.”
When a church communicates its endorsement in that manner, it is not participating in the election, the IRS claimed in the court document.
The proposed settlement does not address related issues such as whether a church could contribute financially to a campaign.
Not so quick, says Americans United for Separation of Church and State, a major church-state interest group that frequently opposes the political agenda of the religious right. Americans United said in a press statement:
The Trump administration’s radical reinterpretation of the Johnson Amendment is a brazen attack on church-state separation that threatens our democracy by favoring houses of worship over other nonprofits and inserting them into partisan politics.
The law affecting nonprofit election participation is known as the Johnson Amendment, as it was introduced by then-Sen. Lyndon Johnson as part of an overhaul of the IRS code. It wasn’t controversial at the time, and the provision later became part of the 1986 overhaul of the IRS code during the Ronald Reagan administration.
Controversy over the provision began about a dozen years ago when various churches of a Christian nationalist or religious-right bent began advocating for its repeal, claiming that it violated their First Amendment rights. Donald Trump made repeal of the Johnson Amendment part of his platform during his 2016 campaign as he successfully sought support from evangelical pastors and parishioners.
Since then, a small number of evangelical pastors have endorsed Trump from the pulpit, and some evangelical churches have distributed voter information material that offered reasons for supporting Trump without explicitly endorsing him. And others have skirted the law in various ways, most blatantly in 2024 when Trump held a campaign rally at a Phoenix, Ariz., church.
Skirting of the law hasn’t been limited to evangelicals. It has become a tradition at some historically black Protestant churches for Democratic candidates to speak during worship services held during campaign season, and at one Philadelphia church last year a pastor praised then-President Joe Biden as the “man we need” without formally endorsing him.
Both Biden and candidate Kamala Harris spoke to worshipers during Sunday services in 2024. Although Trump apparently did not speak during any worship services, he frequently addressed religious organizations, including some with nonprofit status.
The IRS position, explained
The IRS explained its new position in the form of a proposed settlement submitted to the Tyler Division of the U.S. District Court if Eastern Texas the in the National Religious Broadcasts v. Long2 case in which the plaintiffs, which included two churches, sought a judgment allowing all nonprofits to endorse candidates. The settlement, outlining when the Johnson Amendment wouldn’t be enforced, applies only to churches and other houses of worship.
The key part of the IRS rationale for the proposed settlement states:
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. To “participate” in a political campaign is “to take part” in the political campaign, and to “intervene” in a political campaign is “to interfere with the outcome or course” of the political campaign. ... Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does 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 court filing also noted that for many houses of worship, “the exercise of their religious beliefs includes teaching or instructing their congregations regarding all aspects of life, including guidance concerning the impact of faith on the choices inherent in electoral politics.”
What’s next
The settlement reached by the plaintiffs with the IRS is subject to approval by the district court. Although Americans United has not formally intervened in the case, it is hopeful that the court will refuse to accept the settlement. “We urge the court to reject the administration’s latest gambit to rewrite the law through the judicial system,” the AU said.
It is not clear which judge would hold a hearing if there is one on whether to accept the proposed settlement. The court’s chief judge is Amos Mazzant III, a Barack Obama appointee.
Churches and other 501(c)(3) nonprofits have long been free under IRS regulations to make endorsements for ballot measures and to lobby Congress and other lawmaking bodies.
Billy Long is the IRS commissioner.