To Repeal or Not Repeal: The Johnson Amendment

The Johnson Amendment states: corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation . . . and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.3 For decades, there has been fierce debate about the constitutionality and general legality of the Johnson Amendment. Critics say that it limits the free speech and free exercise rights of religious leaders in violation of the First Amendment,4 while supporters of the status quo believe that the Johnson Amendment is an important part of the separation of church and state, without which churches, charities, and their respective memberships would be left dangerously open to partisan manipulation.5 In four parts, this Article will take a non-partisan, in-depth look at the issue. [...]we offer some practical recommendations for the future. Churches have also been at the forefront of most of the significant societal and governmental changes in our history including ending segregation and child labor and advancing civil rights.7 In 1862, President Abraham Lincoln and Congress created the position of commissioner of Internal Revenue, whose job was to collect an income tax that would be used to pay for the war.8 Congress repealed the income tax a decade later, then revived it in 1894, and the Court ruled in 1895 that the income tax was unconstitutional.9 It was only after Wyoming ratified the 16th Amendment in 1913 that the necessary three-quarter majority of states was met, giving Congress the constitutional authority to enact an income tax.10 It was in that year that taxpayers first saw the now-infamous Form 1040, levying a tax of 1% on incomes greater than $3,000 and a 6% surtax on incomes greater than $500,000.11 Since then, the Internal Revenue Service ("IRS") has been responsible for collecting a