A vocal Christian nationalist minority has been working for two decades to overturn a key federal law that protects democracy and elections in the United States. After countless failures, they may finally succeed by allying with Donald Trump’s administration.
Who is Michael Farris?
A federal court is hearing arguments Tuesday on whether to approve a settlement between Trump’s IRS and two churches. The churches are represented by Michael Farris, who has sued the IRS on the grounds that religious freedom means that churches are allowed to use their tax exemptions to benefit party political election campaigns.
Farris is an ardent Christian nationalist. He is a former chairman of the Alliance Defending Freedom and founder of the Home School Legal Defense Association and Patrick Henry College – all known for their commitment to Christian nationalism. The settlement Farris is proposing with acting IRS Commissioner Steve Bessent would declare the Johnson Amendment unconstitutional and bar the government from enforcing the rule.
This would effectively override an important safeguard and turn American churches into unregulated, unaccountable super PACs. By comparison, Citizens United, the 2010 Supreme Court decision that gave wealthy donors and corporations enormous political influence, might seem almost harmless.
What is the Johnson Amendment?
For all the vitriol hurled at the Johnson Amendment, it’s actually quite simple. Donations should fund charitable causes, not political campaigns.
Nonprofit organizations, including churches, are eligible for tax exemptions. Tax exemption is a privilege, not a right. And the government can attach conditions to this privilege. One of these conditions is the Johnson Amendment. It prevents 501(c)(3) nonprofits from endorsing or opposing political candidates. That’s all.
Farris and a small, vocal faction of Christian nationalist organizations are trying to undermine this common sense rule by arguing freedom of speech and religion. But what they really want is money and power.
Twenty-five years ago, the United States Court of Appeals for the D.C. Circuit, sometimes referred to as “the second highest court in the land,” heard a lawsuit similar to the one Farris is trying to resolve here. The court declared that the Johnson Amendment is constitutional and does not violate the churches’ right to freedom of speech or exercise of religion. In other words, it is in direct contradiction to the agreement Farris sought between the Trump administration and the churches.
What the regulation allows – and what it doesn’t
The regulation is not that broad. It doesn’t stop churches from talking about issues like marriage, abortion and civil rights. It was passed in 1954, but it did not stop Martin Luther King Jr. from preaching for civil rights. Nor did it stop conservative white churches in the South from opposing King.
Additionally, the rule only prevents nonprofit organizations and their representatives from engaging in politics in their official capacity. Preachers are welcome to tell friends and family how to vote, just not from the pulpit or on official church stationery.
And remember: If a nonprofit or church really wants to support a political candidate, it can do so. She just has to pay taxes like everyone else. But Farris and the Christian nationalists want to have their cake and eat it too.
The problem of lack of transparency
The bigger problem is that, unlike other 501(c)(3) organizations, churches are not required to report financial information to the IRS. All other charities in this country must file a Form 990 or financial reports. They track every penny that comes in and goes out.
But not churches. They are financial black holes. Without the Johnson Amendment, any major donor could write a check of any amount to a church, earmark the donation for political purposes, and deduct it from taxes.
The church would become a driving force in American election campaigns, similar to super PACs but with even more influence – unregulated, unaccountable, opaque super PACs. That is the goal. Existing PACs could even reorganize as churches to compete.
What a Trump administration has to do with it
Under a normal government, the ability of churches to spend money on campaigns would lead to government regulation. Churches would be forced to follow super PAC rules and disclose their finances. But does anyone seriously believe that the Trump regime — the most corrupt in recent memory, if not American history — would do anything other than profit from this fraud?
Eliminating this rule would be far worse for our democracy than the Citizens United decision and would give this fringe group frightening political power. And it’s a fringe group because the Johnson Amendment is very popular. According to Lifeway Research, an evangelical polling group whose slogan is “Biblical Solutions for Life,” nearly 80 percent of Americans oppose church pastors endorsing a candidate and 75 percent oppose churches publicly endorsing candidates. More than 4,000 faith leaders from diverse backgrounds called on Congress to protect this provision. As do nearly 6,000 nonprofit organizations.
Everyone wants to leave the Johnson Amendment as it is. Except the power-hungry Christian nationalists.
Failed attempts in the past
They failed in 2017 when they relied on Trump’s transactional nature and persuaded the president to sign an executive order that his lawyers admitted in court “does nothing.” (Disclosure: I was involved as an attorney in the lawsuit that forced this admission.)
Christian nationalists cannot turn public opinion against the rule. You cannot repeal the law by executive order. They were unable to convince the higher courts to strike down the law. Instead, they are working with the Trump administration to resolve a lawsuit that repeats arguments that the nation’s second highest court long rejected.
The IRS and these Christian nationalists are hoping that the court will sign off on a settlement that effectively overrides a federal law duly passed by Congress.
The Resistance of Congress
But the separation of powers still exists. Thirteen members of Congress, led by Reps. Jared Huffman (D-California) and Jamie Raskin (D-Maryland), have called on the IRS to withdraw the proposed settlement, which represents “a blatant circumvention of Congress.” They were not swayed by the argument that a settlement would apply only to the two churches involved in the case, as it “opens the door for both secular nonprofits and all other religious organizations to seek a free pass in court for tax-exempt campaign speeches.” They didn’t mince words: “Congress has repeatedly chosen to retain the Johnson Amendment in legislation, and we reject the idea that the IRS can unilaterally reinterpret 70 years of this established law.”
If the IRS does not withdraw the proposed settlement, the court could approve it at Tuesday’s hearing. Lawyers for the nonprofit Americans United for Separation of Church and State will defend the Johnson Amendment in court because the Trump administration will not do so.
The court should not allow Christian nationalists to join forces with Trump to create a giant hole in American democracy. And if it does, Americans shouldn’t tolerate it.
Andrew L. Seidel is a constitutional lawyer, author of several books on Christian nationalism and religious freedom, and host of the podcast “One Nation, Indivisible.” He is vice president of strategic communications at Americans United for Separation of Church and State. This article was written in his capacity as an independent lawyer, author and researcher.