Over 1,500 nonprofits have signed onto a letter urging President Trump and the IRS to maintain a long-standing prohibition on political campaign activities by IRC § 501(c)(3) organizations.
The groups call out a proposed consent judgment in a case challenging the restriction – known as the Johnson Amendment – as unconstitutional when applied to religious groups. (National Religious Broadcasters v. Long, No. 6:24-cv-00311, E.D. Texas) The plaintiffs, in their August 2024 complaint, contended the Johnson Amendment violates their First and Fifth Amendment rights and has been inconsistently applied by the IRS.
To settle the case, the IRS would agree to a permanent bar on enforcing the Johnson Amendment against the plaintiff churches.
But the proposed consent judgment also provides that the Johnson Amendment does not apply to “speech by a house of worship to its congregation … concerning electoral politics viewed through the lens of religious faith.” The Johnson Amendment has guided the IRS on permissible 501(c)(3) organization activities since 1954.
Letter Gains Traction
The nonprofit opposition letter is headed up by Americans United for Separation of Church and State, the Interfaith Alliance, and the National Council of Nonprofits, among others. While the version available at press time included 1,019 signatories, Interfaith Alliance’s Guthrie Graves-Fitzsimmons told Checkpoint that support is growing.
“We’re delighted to see more than 1,500 nonprofits as of August 5 join us in signing the letter – a broad rebuke from trusted nonprofit organizations in all 50 states,” said Graves-Fitzsimmons.
“The Trump administration’s attempt to undermine nonprofit nonpartisanship is deeply unpopular with Americans,” he added. “We’ve seen extremely few houses of worship say they will start endorsing candidates in the wake of Trump’s attempt to pressure them into doing so.”
The letter contends the Johnson Amendment’s restriction prevents charitable tax-exempt organizations from becoming “conduits for partisan politics.” Meanwhile, consent judgment – while applying to just the two plaintiff churches in the case – in effect, “risks opening the floodgates for any church, synagogue, mosque, temple, or other house of worship to do the same.”
Litigation Efforts
In addition to the letter, some nonprofits have submitted amicus briefs in National Religious Broadcasters opposing the consent judgment. Americans United, in its July 25 brief, contends that the consent judgment contains “sweeping legal pronouncements” that at least implicitly, if not expressly, invalidate the Johnson Amendment as to “houses of worship.”
Americans United acknowledges the plaintiffs’ argument that the Johnson Amendment has been “discriminatorily enforced,” but argues the plaintiffs “fall far short” of proving that.
It also contends that the Tax Anti-Injunction Act, under IRC § 7421, bars the plaintiffs’ suit. Under that act, courts cannot hear suits “for the purpose of restraining the assessment or collection of any tax” – with limited exceptions.
A second brief, proposed by the Campaign Legal Center, Public Citizen, and Common Cause, cautions that exempting religious groups from the Johnson Amendment would “create a dangerous new channel for anonymous, tax-deductible election spending.”
Donations to 501(c)(4)s are not tax-deductible – but donations to 501(c)(3)s are, the amici explain. And the brief further points out that churches “presumptively qualify” as 501(c)(3)s and have minimal reporting requirements as compared to non-religious 501(c)(3)s.
According to the Campaign Legal Center amici, the consent judgment “would create a perverse incentive structure in which wealthy individuals and political operatives would have incentive to shift their dark money spending away from 501(c)(4)s and into newly politicized churches and religious nonprofits.”
Court Limits Briefing
Substance aside, plaintiffs took issue with the timing of the Campaign Legal Center brief, arguing to the U.S. District Court for the Eastern District of Texas that it was not filed “until 24 days after the filing of the proposed consent decree.” While there is no district court rule on amicus brief timing, the plaintiffs fear that “a string of proposed amicus seek to enter into this case long after an appropriate time for doing so.”
In an August 1 order, however, the court permitted the Campaign Legal Center amici to file their brief, giving them until August 8. But in recognition of the plaintiffs’ concerns, it ordered that any additional motions for leave to file an amicus brief be submitted by August 5.
For more on whether organizations that influence legislation or political campaigning can qualify for tax exemption, see Checkpoint’s Federal Tax Coordinator 2d ¶ D-6401. For more on the Tax Code’s anti-injunction provisions, see Checkpoint’s Federal Tax Coordinator 2d ¶ V-5700 et seq.
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