For nearly 70 years, the Johnson Amendment has prohibited tax-exempt organizations from supporting or opposing political candidates. Today, that prohibition faces unprecedented legal and legislative challenges. Nonprofit leaders should understand what's at stake and how potential changes could affect their organizations.
What Is the Johnson Amendment?
The Johnson Amendment is a provision of Section 501(c)(3) of the Internal Revenue Code that has shaped the relationship between tax-exempt organizations and political campaigns since 1954.
The Core Prohibition
The Johnson Amendment contains a single, powerful restriction:
"Organizations exempt from federal income tax under section 501(c)(3) are prohibited from directly or indirectly participating in or intervening in any political campaign on behalf of (or in opposition to) any candidate for public office."
This prohibition is absolute—there is no de minimis exception, no safe harbor for minimal activity, and no distinction between organizational and individual speech when made in an organizational capacity.
What This Means in Practice
The Johnson Amendment prohibits 501(c)(3) organizations from:
Endorsing or opposing political candidates:
Making statements supporting or opposing candidates
Publishing materials that favor or oppose candidates
Allowing candidates to use organizational platforms for campaign purposes
Making organizational positions on candidates known to the public
Making contributions to political campaigns:
Direct financial contributions to candidates or campaigns
In-kind contributions of goods or services
Volunteer time organized by the organization
Use of organizational resources for campaign purposes
Conducting voter registration drives that favor specific candidates:
Voter registration in areas likely to favor certain candidates
Voter registration materials that mention or favor candidates
Coordination with campaigns on voter registration
Targeting registration efforts to benefit specific candidates
Distributing candidate materials:
Distributing campaign literature
Posting campaign signs on organizational property
Sharing campaign materials through organizational channels
Linking to campaign websites from organizational sites
Making statements in organizational materials that support or oppose candidates:
Newsletter articles endorsing candidates
Social media posts supporting or opposing candidates
Website content favoring candidates
Email communications to members about candidates
What Remains Permitted
Despite the prohibition on campaign activity, 501(c)(3) organizations retain significant freedom:
Nonpartisan voter education and registration:
Voter registration drives conducted without partisan bias
Voter education on issues and candidate positions
Candidate forums conducted in a balanced manner
Get-out-the-vote efforts that don't favor candidates
Issue advocacy on policy issues (separate from campaign activity):
Lobbying on legislation (within limits)
Public education on policy issues
Advocacy for policy positions
Research and analysis on public policy
Education about candidates' positions on issues:
Candidate questionnaires on issues
Voter guides showing candidate positions
Analysis of candidate policy proposals
Comparison of candidates on issues (if balanced)
Internal communications about organizational concerns:
Communications to members about issues affecting the organization
Discussions of policy positions relevant to organizational mission
Analysis of how election outcomes might affect the organization
Encouragement of civic participation
The History and Purpose
The Johnson Amendment was added to the tax code in 1954 by then-Senator Lyndon B. Johnson:
Original purpose was to prevent tax-exempt organizations from being used as vehicles for campaign activity
Bipartisan support reflected consensus that tax exemption should not subsidize political campaigns
Rarely enforced but serves as important guardrail for nonprofit sector
Longstanding policy that has survived numerous challenges over 70 years
The Two Sides of the Johnson Amendment Debate
The Johnson Amendment has always been controversial, with passionate advocates on both sides.
Supporters' Arguments
Those who support maintaining the Johnson Amendment make several key arguments:
Protects the integrity of the tax system:
Tax exemption is a form of government subsidy
Taxpayers should not subsidize political campaigns through tax-exempt organizations
Allowing campaign activity would effectively provide government funding for campaigns
The tax system should remain neutral in political contests
Prevents tax subsidies from being used to influence elections:
Tax-deductible contributions would flow to organizations supporting candidates
Wealthy donors could use tax-exempt organizations to amplify political influence
The tax code would become a tool for political manipulation
Government would effectively be funding political campaigns
Maintains public trust in tax-exempt organizations:
Nonprofits are trusted because they're seen as nonpartisan
Political activity would undermine public confidence
Charitable missions would be compromised by political involvement
Organizations would lose credibility with diverse stakeholders
Protects nonprofits from political polarization and pressure:
Organizations would face pressure to endorse candidates
Boards and staff would be divided by political disagreements
Donors would demand political positions
Mission focus would be lost to political activity
Reflects longstanding policy consensus:
70 years of bipartisan support
Consistent with international norms for charitable organizations
Represents settled expectations in the nonprofit sector
Provides clear, bright-line rule for compliance
Opponents' Arguments
Those who oppose the Johnson Amendment and seek its repeal or modification make equally passionate arguments:
Violates the First Amendment's free speech protections:
Government cannot condition benefits on surrender of constitutional rights
Tax exemption is not a subsidy but recognition of public benefit
Organizations should not lose free speech rights because of tax status
The restriction is content-based and viewpoint-discriminatory
Infringes on religious freedom:
Religious leaders should be able to address moral dimensions of political choices
Preventing religious speech on candidates violates religious liberty
Churches are uniquely positioned to provide moral guidance on elections
The restriction interferes with religious exercise
Creates unjust distinction between corporate and nonprofit speech:
For-profit corporations can engage in political speech (Citizens United)
Nonprofits are more restricted than for-profit entities
This distinction lacks rational basis
Tax-exempt organizations should have equal speech rights
Prevents religious leaders from addressing important moral issues:
Many political issues have moral dimensions
Religious leaders have duty to provide moral guidance
Artificial separation of moral teaching from political choices is impossible
Congregants need guidance on moral implications of political decisions
Is outdated and conflicts with modern speech protections:
Adopted in 1954 before modern First Amendment jurisprudence
Inconsistent with current Supreme Court speech protections
Reflects outdated view of government-nonprofit relationship
Should be reconsidered in light of constitutional developments
Recent Legal Challenges
The Johnson Amendment is facing its most serious legal challenges in decades.
Two Constitutional Lawsuits Filed
Two separate lawsuits have been filed in federal court seeking to declare the Johnson Amendment unconstitutional:
First Lawsuit:
Claims the Johnson Amendment violates the First Amendment right to free speech
Argues religious freedom is infringed by preventing religious leaders from addressing political choices
Challenges the distinction between issue advocacy and campaign activity
Seeks declaratory judgment that the amendment is unconstitutional
Filed by religious organizations and religious leaders
Second Lawsuit:
Makes similar constitutional arguments regarding free speech and religious liberty
Emphasizes the burden on religious exercise
Challenges IRS enforcement as arbitrary and discriminatory
Seeks injunction preventing IRS enforcement of the amendment
Filed by different religious organizations with similar concerns
Current Status of Litigation
Both cases are in early stages of federal litigation:
Procedural posture:
Cases are in district courts
Motions to dismiss have been filed by the government
Discovery may be conducted if cases survive motions to dismiss
Preliminary injunctions may be sought
Timeline:
District court decisions likely within 6-12 months
Appeals to circuit courts would follow
Supreme Court review possible but not certain
Final resolution could take 1-3 years or longer
Potential outcomes:
Courts could uphold the Johnson Amendment as constitutional
Courts could strike down the amendment entirely
Courts could narrow the amendment's application
Courts could require more rigorous IRS enforcement standards
Potential Supreme Court Precedent
Recent Supreme Court decisions suggest potential sympathy for constitutional challenges:
Relevant Supreme Court precedents:
Citizens United v. FEC — Corporations have free speech rights in political campaigns
Trinity Lutheran v. Comer — Government cannot exclude religious organizations from generally available benefits
Carson v. Makin — Government cannot discriminate against religious exercise
303 Creative v. Elenis — Free speech protections extend to expressive activity
Current Court composition:
Conservative majority sympathetic to free speech and religious liberty claims
Skepticism of government restrictions on speech
Emphasis on religious freedom protections
Willingness to reconsider longstanding precedents
Implications:
If cases reach the Supreme Court, challengers may prevail
Court could issue narrow or broad ruling
Decision could fundamentally reshape nonprofit political activity
Outcome uncertain but challengers have reasonable chance of success
Legislative Challenge: The Free Speech Fairness Act
Beyond legal challenges, Congress is considering legislative action to modify the Johnson Amendment.
The Free Speech Fairness Act
Recently introduced by representatives in Congress, this bill seeks to create a carve-out to the Johnson Amendment:
Key provisions:
Allows churches and 501(c)(3) organizations to make political statements "in the ordinary course of carrying out their tax-exempt purposes"
Preserves prohibition on direct campaign contributions and coordination with campaigns
Creates safe harbor for political speech that is incidental to tax-exempt purposes
Defines permissible activity more broadly than current law
What "ordinary course" means:
Speech made during regular organizational activities
Statements that don't constitute primary purpose of the organization
Political speech that is incidental to exempt purposes
Activity that doesn't involve substantial organizational resources
What This Could Mean
If enacted, the Free Speech Fairness Act would significantly change the landscape:
Expanded political speech rights:
Religious leaders could endorse candidates from the pulpit
Nonprofits could make political statements in newsletters and websites
Organizations could express views on candidates in regular communications
Political speech would be permitted if not the organization's primary activity
Continued restrictions:
Direct campaign contributions would remain prohibited
Coordination with campaigns would still be restricted
Organizations couldn't make political activity their primary purpose
Some limits would remain on political involvement
Implementation questions:
How would "ordinary course" be defined and enforced?
What constitutes "substantial" political activity?
How would IRS monitor compliance?
Would regulations provide clear guidance?
Legislative Outlook
The bill faces significant political challenges:
Opposition:
Good government organizations oppose the bill
Many Democrats view it as undermining campaign finance laws
Some tax policy experts question its wisdom
Concerns about politicization of nonprofits
Support:
Religious organizations strongly support the bill
Free speech advocates favor expanded speech rights
Some Republicans prioritize religious liberty
Conservative groups see it as correcting government overreach
Prospects:
House passage possible with Republican majority
Senate passage uncertain given narrower majority
Presidential signature likely if bill reaches the President
Timeline uncertain but could move in 2025
Implications for Different Types of Organizations
The potential changes to the Johnson Amendment would affect different types of organizations in different ways.
Churches and Religious Organizations
Religious organizations are most directly affected by these challenges:
Current restrictions:
Cannot endorse candidates from the pulpit
Cannot distribute campaign materials
Cannot make organizational statements supporting candidates
Risk losing tax-exempt status for violations
Potential changes:
Could endorse candidates as part of religious teaching
Could address moral dimensions of political choices
Could provide guidance to congregants on voting
Would have expanded political speech rights
Considerations:
Some religious leaders welcome expanded rights
Others fear politicization of religious institutions
Congregational divisions over political endorsements
Potential impact on charitable mission and public trust
Nonprofits and Charities
Other 501(c)(3) organizations face more moderate impact:
Current situation:
Can engage in issue advocacy
Cannot endorse candidates
Must maintain nonpartisan stance
Focus on mission-related policy work
Potential changes:
Could make political statements in regular communications
Could express views on candidates' positions
Would have more flexibility in political speech
Still couldn't make political activity primary purpose
Considerations:
Many nonprofits prefer to remain nonpartisan
Donor bases may be politically diverse
Political activity could distract from mission
Some organizations might welcome expanded rights
Educational Institutions
Universities and schools face unique considerations:
Current restrictions:
Institutions cannot endorse candidates
Faculty have more freedom as individuals
Student organizations have some autonomy
Institutional neutrality is valued
Potential changes:
Institutions could take political positions
Unclear how this would affect academic freedom
Potential for political pressure on institutions
Questions about faculty vs. institutional speech
Considerations:
Most universities prefer institutional neutrality
Academic freedom concerns
Donor and alumni relations
Public trust in educational institutions
Healthcare and Social Services
Healthcare providers and social services organizations face practical considerations:
Current approach:
Focus on policy advocacy related to mission
Avoid campaign activity
Maintain relationships with officials of all parties
Emphasize nonpartisan service delivery
Potential changes:
Could engage in more political speech
Might face pressure to take political positions
Could affect relationships with government partners
Questions about impact on delivery service
Considerations:
Most prefer to remain nonpartisan
Serve diverse populations
Depend on government funding and partnerships
Mission focus on service, not politics
What Could Change?
Understanding potential scenarios helps organizations prepare for different outcomes.
Scenario 1: Court Strikes Down Johnson Amendment
If courts declare the Johnson Amendment unconstitutional:
Immediate effects:
Tax-exempt organizations could support/oppose political candidates
No federal restriction on campaign activity by 501(c)(3)s
States might or might not create their own restrictions
Massive uncertainty about permissible activity
Longer-term implications:
Some organizations would engage in campaign activity
Others would maintain nonpartisan stance
Donor expectations and preferences would vary
Potential for political polarization of nonprofit sector
Challenges:
Unclear guidance on permissible activity
Potential for mission drift
Donor concerns about politicization
Board and staff divisions over political involvement
Scenario 2: Congress Passes Free Speech Fairness Act
If Congress enacts a legislative carve-out:
Immediate effects:
Legislative language would determine scope of permitted political speech
Likely carved out for religious organizations initially
Possible expansion to other 501(c)(3) organizations over time
IRS would issue regulations implementing the law
Longer-term implications:
Creates permanent legal framework rather than court-imposed change
Provides more clarity than court decision
Allows for regulatory guidance and safe harbors
Maintains some restrictions while expanding speech rights
Challenges:
Implementation details would be debated
Regulations would take time to develop
Uncertainty during transition period
Potential for further legislative changes
Scenario 3: Status Quo Maintained
If legal challenges fail and Congress doesn't act:
Immediate effects:
Johnson Amendment remains in place and enforced
Current restrictions continue
Organizations continue current practices
No change to legal landscape
Longer-term implications:
Continued debate over amendment's appropriateness
Potential for future challenges
Ongoing tension between speech rights and tax policy
Sector continues to operate under current rules
Considerations:
Most likely scenario if no immediate breakthroughs
Provides certainty and predictability
Maintains longstanding policy consensus
Allows organizations to focus on mission
What Nonprofits Should Do Now
Organizations should take proactive steps to prepare for potential changes while maintaining compliance with current law.
Immediate Actions
1. Understand Current Restrictions
Review your organization's policies to ensure compliance with Johnson Amendment:
Audit current practices for political activity
Review communications for campaign-related content
Ensure staff and board understand restrictions
Document compliance efforts
2. Assess Your Risk
Determine whether your organization has been skirting Johnson Amendment restrictions:
Review past activities for potential violations
Assess whether current practices are compliant
Identify areas of potential exposure
Consider whether self-correction is needed
3. Legal Review
Have counsel review your political activity policies and recent communications:
Engage attorneys with expertise in nonprofit law
Request analysis of compliance status
Discuss potential exposure and remediation
Develop compliant policies and procedures
4. Board Education
Educate board and leadership about Johnson Amendment requirements:
Present overview of current restrictions
Discuss potential changes and their implications
Clarify organizational position on political activity
Obtain board guidance on approach to political speech
Short-Term Monitoring
1. Follow developments in the two pending constitutional lawsuits
Subscribe to legal updates from nonprofit associations
Monitor court dockets for filings and decisions
Assess implications of court rulings for your organization
Adjust practices based on legal developments
2. Monitor Congressional action on the Free Speech Fairness Act
Track bill progress through Congress
Review legislative language and amendments
Assess implications for your organization
Participate in advocacy if appropriate
3. Stay informed through nonprofit professional associations
Join associations relevant to your mission area
Participate in webinars and conferences
Share information with peer organizations
Contribute to collective understanding
4. Join advocacy efforts if your organization wants to influence the outcome
Determine your organization's position on Johnson Amendment
Participate in coalition advocacy efforts
Communicate with legislators about your views
Engage in permissible lobbying on the issue
Long-Term Preparation
1. Develop contingency plans for different scenarios
Plan for scenario where Johnson Amendment is struck down
Plan for scenario where Free Speech Fairness Act passes
Plan for scenario where status quo is maintained
Identify decision points and trigger events
2. Consider how your organization would handle expanded political speech rights
Discuss with board whether organization would engage in campaign activity
Assess donor and stakeholder expectations
Consider impact on mission and organizational culture
Develop policies for political speech if permitted
3. Clarify your organization's values regarding political engagement
Articulate organizational philosophy on political activity
Determine whether political speech aligns with mission
Consider how political activity would affect stakeholders
Document organizational values and principles
4. Prepare stakeholders for potential changes
Communicate with donors about potential changes
Discuss with staff implications for their work
Engage board in strategic discussions
Prepare community for potential organizational changes
Key Takeaways
The Johnson Amendment has prohibited 501(c)(3) political endorsements since 1954, representing a longstanding policy consensus that tax exemption should not subsidize political campaigns
Two constitutional lawsuits are challenging the amendment's validity on free speech and religious freedom grounds, with outcomes that could take 1-3 years to resolve
The Free Speech Fairness Act in Congress would create a legislative carve-out allowing political statements in the ordinary course of tax-exempt purposes, though passage is uncertain
Religious organizations are most directly affected by these challenges and are driving the legal and legislative efforts to modify or eliminate the restriction
Court outcomes could take 1-3 years; legislative action timeline is uncertain, but significant changes to the Johnson Amendment landscape are possible within the next few years
Nonprofit organizations should stay informed and prepare contingency plans for different scenarios while maintaining compliance with current restrictions
Current restrictions remain in effect unless courts or Congress change them, so organizations must continue to comply with the Johnson Amendment while monitoring developments
