Freedom of speech is fundamental to our democracy and what it means to be an American. The Bill of Rights protects and reminds all Americans that we have been endowed with the right to freely express our ideas or opinions without fear of reprisal or persecution from the government. That is, unless you work for a non-profit organization. Unfortunately, in 1954, the freedom of speech was stripped from non-profit 501(c)(3) organizations and their employees when the Johnson Amendment passed. Since then, all non-profit employees and resources, including charities and houses of worship, have been forced to censor themselves from any political discussion about any candidate or risk punishment by the IRS through a fine or revocation of their tax-exempt status. Just as a reminder: the First Amendment states, “Congress shall make no law…abridging the freedom of speech…”
While the Constitution’s provision of the freedom of speech is not absolute, it certainly should not change based on an entity’s non-profit or for-profit status. Why not allow business executives, college professors, tribal leaders, non-profit directors, and every other American to be treated the same? A business executive can write an email to his or her employees, telling them why they think a certain candidate should be supported or opposed, but a non-profit leader cannot send the same email. A college professor can say anything to his or her class about any politician, but Pastors, Imams, Priests, or Rabbis are prohibited in their official duties from speaking about the same politician. Even when non-profits are not expending any money to speak out, they are still in violation of the Johnson Amendment. It gets even more confusing when you consider that non-profits can speak out about public issues, state questions, or even lobby Congress for a change in the law, as long as they do not speak for or against a candidate. Clearly, this was a law written by politicians to protect politicians.
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The Free Speech Fairness Act seeks to end the confusion and fear once and for all by amending the Johnson Amendment. Non-profits would still be distinct from political 501(c)(4) organizations and barred from making campaign contributions or political advertising. But faith leaders and non-profit employees would no longer fear expressing their opinions and providing guidance to those connected to their non-profit. Here is a simple way to understand why we think this is important to correct. If Congress can control a non-profit’s First Amendment freedom of speech, then why couldn’t Congress also control their First Amendment rights of assembly, religion, or press? There is no difference in those First Amendment rights.
The intent of this legislation is not to politicize religious services or non-profits. Most organizations rightly want to stay out of political conversations since they are often divisive, rather than unifying. But why would we prohibit a few organizations from speaking just because most non-profits do not choose to do so? Let each organization determine what it will and will not say about candidates, but let’s not use the power of the IRS to silence that speech.
Sen. James Lankford (R-Okla.) serves on the Senate Finance and Appropriations Committees. Rep. Steve Scalise (R-La.) is the House Republican Whip. Follow them on Twitter: @SenatorLankford and @SteveScalise