Vagueness of law creates a chilling effect on free speech

President Trump’s public vows to “totally destroy” the Johnson Amendment started during his campaign, continued through election night, and have persisted during his presidency — most recently appearing in his speech at the National Prayer Breakfast this past February.

In 1954, Sen. Lyndon Johnson wanted the tax code amended to bar tax-exempt entities from involvement in political campaigns. If they got involved they would lose their tax-exempt status. At the time, his goal was to neutralize political opposition. But churches were swept up in the net of this law along with everyone else, and it is doubtful Johnson predicted the price that would be exacted on free speech six decades down the road.

While in essence the law prohibits speech in support of specific candidates and permits speech on “political” issues, it’s just not that simple. Current IRS guidance describing in detail which activities are prohibited and which are not is extremely vague and hard to understand. When it is difficult to know if one’s comments will draw the government’s scrutiny, one tends to want to stay away from that line.

As a consequence of its vagueness, and from the term “political” bleeding over from candidates to issues, many pastors may mistakenly believe the law prevents any discussion of political matters alto- gether. Most of these want to be good citizens and obey the authorities. They self-censor due to their incorrect apprehension of the IRS’s unnecessarily vague guidance.

This chilling effect is exacerbated by the fact that some advocacy organizations opposed to religion in our public square use it to write letters to churches warning of potential investigations. “If the IRS determines that your house of worship has intervened in an election, it has the power to revoke your tax exemption. It could also levy significant fines on an offending congregation or its leaders,” one such letter reads. What pastor won’t try to stay far away from the line after receiving such a letter?

Moreover, even independent experts note that vagueness is a problem with the current law, and “determining whether a particular comment or speech is even political can be quite difficult.” Even the IRS, charged with administering the law, provides 21 scenarios explaining it instead of being able to state clearly what the law is!

One of the foundational requirements of law is that it be clear. The Johnson Amendment and current IRS guidance describing it are not. This produces an unfortunate chilling effect on wide variety of speech pertaining to political matters — some of which may even currently be lawful.

In order to eliminate this chilling effect and bring clarity to the law, we need the remedy of a bright-line rule that both the IRS and civil society can clearly understand and follow. This rule should err on the side of more free speech and allow speech in sup- port of specific candidates. Such a rule solves problems of vagueness because of its simplicity: all speech is permitted.

The Free Speech Fairness Act, sponsored in the House by Majority Whip Steve Scalise of Louisiana and Rep. Jody Hice, R-Georgia, and in the Senate by Sen. James Lankford, R-Oklahoma, does exactly that. It amends Section 501(c)3 to permit statements related to political campaigns as long as they (1) are made in the organization’s ordinary course of its activities for which it was founded, and (2) incur no more than minimal, incidental costs. It does this for all 501(c)3 tax-exempt organizations — churches or not, and regardless of their mission, focus or political views.

Amending the Johnson Amendment in this manner relaxes the speech restrictions on exempt entities and allows them the breathing room to communicate how a candidate has handled their issues, while at the same time still prevents them from using their organization as a vehicle to finance a candidate or buy political advertisements.

Not every pastor will use this new freedom in the same way. That’s OK. But just because many may not want to comment on candidates doesn’t mean the government should be banning those who do.