KVIG Informative

No nonprofit is forbidden from speaking. The tax code attaches conditions to a tax benefit, and the strictest conditions fall on charities. Whether those conditions are fair is an active argument in the courts.

The Johnson Amendment, added to the tax code in 1954 and named for then-Sen. Lyndon Johnson, bars 501(c)(3) organizations from taking part in political campaigns, including endorsing or opposing candidates. Lobbying on legislation is a separate matter. The Congressional Research Service says charities may do a limited amount of it, not none.

In 1983 the Supreme Court took up the lobbying limit in Regan v. Taxation With Representation of Washington. The Court unanimously held that the limit did not violate the First Amendment, reasoning that Congress had not banned lobbying but had declined to subsidize it through deductible donations. Justice William Rehnquist’s opinion also relied on the fact that a charity could create a 501(c)(4) affiliate to lobby without the limit.

The Critics’ Argument Commentary on an IRS exempt-organizations symposium notes that the burden of running a separate affiliate varies widely, and that something as simple as a shared website can cause one group’s speech to be attributed to the other. It also observes that later Supreme Court opinions, including Janus v. AFSCME, describe political speech as occupying the highest rung of First Amendment values and question the deferential standard applied in Regan. The plaintiffs in the church case described below made a version of that argument against the campaign ban.

The Defenders’ Argument Supporters of the rule argue that the deduction exists to fund charitable work. Rachel Laser, president of Americans United for Separation of Church and State, said after the court ruling described below that tax-free giving to charities should pay for charity rather than partisan politics. A Public Religion Research Institute analysis of 2023 polling found majorities of all major religious groups opposed letting places of worship endorse candidates while keeping their tax exemption.

The Church Case In August 2024, National Religious Broadcasters, Intercessors for America, and two Texas congregations, Sand Springs Church in Athens and First Baptist Church of Waskom, sued the IRS in federal court in the Eastern District of Texas, arguing the Johnson Amendment violated their rights. On July 7, 2025, the IRS and the plaintiffs jointly asked the court to approve a consent judgment under which the amendment would not apply to a house of worship’s communications to its congregation in connection with religious services. In the filing the IRS said it had generally not enforced the amendment against houses of worship.

What the Court Decided Americans United sought to intervene, arguing the settlement would carve out houses of worship while leaving secular nonprofits under the ban. Judge J. Campbell Barker denied intervention but accepted the group’s brief as a friend of the court. On March 31 of this year he rejected the consent judgment and dismissed the case, ruling that the parties’ agreement could not give the court authority that federal statutes otherwise withhold. The Johnson Amendment remains in force for all 501(c)(3) organizations. Michael Farris, general counsel for National Religious Broadcasters, said the plaintiffs planned to appeal.

The practical takeaway is a distinction between a prohibition and a condition. Charities remain free to speak on politics. If they do, they give up the deduction their donors would otherwise receive, or they move that activity into a separate organization. Whether that trade is a reasonable price for a tax subsidy or an unconstitutional burden is the question an appeal would put back before the courts, and readers can follow it through the case’s public docket.