The IRS recently apologized for targeting conservative groups with audits and investigations during the 2012 election. In some cases, the IRS asked about political affiliations, lists of donors, and family members’ activities. Apparently, the groups were targeted because they had the words “tea party” or “patriot” in their names. An IRS official apologized, saying, “That was wrong. That was absolutely incorrect, it was insensitive and it was inappropriate. That’s not how we go about selecting cases for further review… The IRS would like to apologize for that.”
What the IRS did here is unconstitutional. It is always outrageous when the coercive powers of government are used for political intimidation. And I am glad that the IRS has apologized for its actions. But this story illustrates the problem when we allow government agencies and officials to exercise unfettered power to enforce vague and ambiguous laws.
The IRS has in fact been exercising that kind of power since 1954 with the Johnson Amendment that allows it to censor a pastor’s sermon from the pulpit. The Johnson Amendment prohibits “participating in or intervening in” a political campaign “on behalf of or in opposition to a candidate for public office.” The IRS has interpreted this over the years to say that churches cannot “directly or indirectly” participate in a campaign. But there is no definition of what it means to “indirectly” participate in a campaign. The IRS tells churches that it must consider “all the facts and circumstances” to determine when a church has violated the Johnson Amendment. Basically, this means that it won’t tell churches with precision what speech violates the Johnson Amendment and instead will wait and evaluate everything after the fact to then determine if the church has violated the law. The IRS even went so far as to say that a church could violate the Johnson Amendment by the use of “code words” where it doesn’t even have to name a candidate specifically but if it speaks in a certain way that the IRS believes supports or opposes a candidate, then that could violate the law.
The point here is that the IRS enforcement of the Johnson Amendment is a situation particularly susceptible to abuse of power. The IRS is unaccountable for who it investigates, when it investigates, or even whether it investigates violations of the Johnson Amendment. It issues vague pronouncements designed to intimidate churches into silence out of fear of an IRS audit or penalties. The IRS’ recent apology demonstrates that it has broad, coercive, and unconstitutional powers that can be used improperly to chill speech and intimidate the exercise of constitutional rights. But that’s what the IRS has been doing with the Johnson Amendment since 1954. The situation is even worse when considering the fact that the Johnson Amendment was passed in the first place to silence political opponents of Senator Lyndon Johnson.
The Johnson Amendment is an unconstitutional restriction on a pastor’s right to speak freely from the pulpit and it allows the IRS to utilize intimidation to enforce the law and chill constitutionally protected speech. Alliance Defending Freedom has been fighting the Johnson Amendment and its unconstitutional effects on churches and pastors. That’s why we started Pulpit Freedom Sunday in 2008. If you are a pastor, sign up to participate in Pulpit Freedom Sunday on June 9, 2013. This year’s Pulpit Freedom Sunday is about marriage, but it remains about the broader principle that no IRS official should ever tell a pastor what he can or cannot say from the pulpit.
The recent IRS apology is a beginning. But the IRS should also apologize for 59 years of intimidation of pastors and churches. It’s time to end the Johnson Amendment’s regime of censorship.
Recently, the Freedom From Religion Foundation 
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