Batts Morrison Wales & Lee - News & Resources - Nonprofit Special Alert

Bill Introduced in Congress Would Reinstate Freedom of Speech for Churches and Charities in the Political Arena

September 29, 2016

CongressmeUnited States of America Constitution, Declaration of Independence, and other historical documents in front of the United States of America's flagn Steve Scalise (House Majority Whip) and Jody Hice yesterday filed H.R. 6195, entitled the “Free Speech Fairness Act,” which would reinstate freedom of speech for churches and charities as recommended by the Commission on Accountability and Policy for Religious Organizations sponsored by ECFA.  The bill would permit churches and charities to engage in political communications in the course of conducting their regular and customary exempt-purpose activities, so long as they do not spend money incrementally in so doing.

Then-Senator Lyndon B. Johnson introduced an amendment to Section 501(c)(3) of the Internal Revenue Code in 1954 that barred churches and charities from “intervening” in political campaigns.  That provision, often referred to as the “Johnson Amendment,” has been interpreted by the IRS to prohibit clergy and nonprofit leaders from making certain statements regarding political campaigns or candidates at official functions or in official publications of their organizations.  And the IRS has stated that even when a church or charity official doesn’t mention a candidate directly, all of the facts and circumstances must be considered in determining whether a communication violates the law.  Such vague rules have caused many pastors and charity officials to steer widely away from any speech that could potentially be construed as political.  As a result, the Johnson Amendment has chilled free speech.

H.R. 6195 is consistent with the recommendations made in the 2013 report by the Commission on Accountability and Policy for Religious Organizations (“the Commission”), a national commission sponsored by ECFA. The Commission report represented the collective work of a diverse group of thought leaders from the nonprofit sector—both religious and secular—as well as highly respected members of the legal community.  The Commission’s recommendations represent practical solutions for addressing the untenable current state of affairs related to the prohibition of political campaign intervention by 501(c)(3) organizations.  The Commission’s report is available at www.religiouspolicycommission.org.  BMWL’s managing partner, Mike Batts, served as chairman of the Commission.

Both H.R. 6195 and the Commission’s recommendations maintain the sound tax policy of not permitting tax-deductible contributions to be used to fund political campaign activity.

The fate of this proposed legislation likely depends on the outcome of the upcoming election.  Republican presidential candidate Donald Trump has expressed a desire to reinstate freedom of speech in the political arena for churches and charities.

 

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