(ANALYSIS) In remarks to the far right Catholic media outlet Church Militant last week, the head of the Federal Election Commission, James E. “Trey” Trainor III, accused Catholic Bishops of “hiding behind” their nonprofit status in order to avoid taking sides in the upcoming presidential election.

As nonprofits that claim tax exemption under section 501(c)(3), religious organizations and houses of worship are prohibited from either verbally or financially endorsing political candidates. Added to the United States tax code in 1954, this law is known as the Johnson Amendment. 

The repeal of the Johnson Amendment has become a cause celebre among the Christian right and President Trump campaigned on a promise to overturn it. In May 2017, Trump signed an Executive Order which he claimed “got rid” of the Amendment. Trainor referenced this E.O. in his remarks stating, that “especially with this executive order that President Trump signed, the churches can absolutely engage in that activity.”

As his colleague at the FEC later pointed out, Trump’s E.O. did not, and could not, nullify the Johnson Amendment.  The legal filing of the order explicitly states that any “adverse action” taken against a person or house of worship by the Department of the Treasury (read: IRS) in response to religious or moral speech must be “consistent with the law.” Despite several recent attempts by Congress to repeal the Johnson Amendment, it is still law and thus it would be consistent with the law to pursue action against a house of worship for endorsing a candidate for office. All the Order accomplished is to signal that the Executive Branch has no interest in enforcing this law.

The Republican party has made repealing the Johnson Amendment a pet project. Interestingly, political activity and activism is more common among liberal-leaning religious communities, rather than the white evangelical Protestant churches that make up much of the GOP’s political base.

A recent study published in the Journal for the Scientific Study of Religion which surveyed 1,262 congregations in a wide variety of religious traditions found that in the last decade liberal, white mainline Protestant and Black congregations have engaged in political activity more often than white evangelical ones. The survey also found that these same congregations would also be more willing to endorse political candidates than evangelical ones if they were legally allowed to.

The primary argument made by opponents of the Johnson Amendment is that it violates their First Amendment rights, both freedom of speech and freedom of religion. Since 2008, thousands of conservative Protestant pastors have participated in an annual “Freedom Sunday,” deliberately giving a sermon that violates the Johnson Amendment in order to protest the alleged violation of their rights. The Alliance Defending Freedom, which founded Freedom Sunday, states that the organization “hopes to eventually go to court to have the Johnson Amendment struck down as unconstitutional for its regulation of sermons, which are protected by the First Amendment.”

According to Douglas Laycock, constitutional law expert and Professor of Law at the University of Virginia Law School, the Alliance Defending Freedom may have a strong case.

“A sermon is core religious speech, protected by both the Free Speech Clause and the Free Exercise Clause,” he told me via email. “Moral issues often become political issues; both church and state have always spoken to morality. So telling a pastor that he can't preach about abortion, or social justice, too close to election day, because it's an implied endorsement, strikes at the heart of religious free speech. I would protect the explicit endorsements for the same reasons.” 

However, the constitutionality of the law has never really been tested, primarily because it is rarely enforced. Institutions that are found to have violated the Johnson Amendment are in theory stripped of their tax exempt status.

There is only one case where this punishment was applied, Branch Ministries v. Rossotti, which was adjudicated 20 years ago. An IRS task force called the Political Activities Compliance Initiative investigated violations of the Johnson Amendment during the 2004, 2006 and 2008 election cycles. They found dozens of violations but all were settled with warnings. There doesn’t appear to have been any systematic enforcement in the election cycles since, and the IRS did not respond to inquiries about what currently is being done to investigate and enforce this law.

Even if the IRS were to start enforcing the Johnson Amendment again, a religious organization, institution, or leader can legally engage in political activity in a variety of ways without ever violating the law. For example, a religious leader can endorse a candidate, as long as he or she doesn’t do so specifically as a representative of their religious institution. A religious organization can invite candidates for office to speak, as long as they invite all candidates running for a particular office and hold a discussion which does not endorse one candidate or position over the other.

Openly violated by supporters of both the political left and right, and full of massive loopholes, for all intents and purposes, the Johnson Amendment is dead in the water. So why not just repeal it? For all the reasons to do away with the Johnson Amendment, there are two major reasons to keep, and enforce, it: campaign finance and widespread public support.

According to Laycock, Branch Ministries was prosecuted not only because it took out a series of ads encouraging voters to vote against Bill Clinton in the 1992 presidential election, but that they solicited contributions to pay for the ads and claimed that such contributions would be tax deductible.

“Political contributions are not tax deductible, they have to be reported, and they are subject to limits on the amount contributed. None of those rules apply to religious contributions. So if political spending could be routed through churches, there would not be a level playing field,” Laycock explained. 

Despite the increasingly vocal conservative opposition to the Amendment, according to a 2016 Pew Research survey, 66% of Americans opposed churches endorsing political candidates. Many religious organizations themselves are in favor of keeping and enforcing the Johnson Amendment. The United States Conference of Catholic Bishops has made it clear that the Catholic Church in the United States, which is the largest single religious institution in the country, will not begin to endorse or otherwise support candidates for office even if it is legally allowed to. 

So the Johnson Amendment is a legal conundrum — an unenforced and perhaps unconstitutional law that simultaneously performs a necessary legal and political function and enjoys broad popular support. Clearly Congress needs to take a hard, nonpartisan look at the Johnson Amendment and weigh whether the law needs to be enforced, reformed or repealed.

Given how politicized the Amendment has become, this seems unlikely. For the foreseeable future, the Johnson Amendment will continue to be the legal elephant in the congregation anytime a political candidate steps in front of a pulpit.

Claire Sadar is a freelance journalist based in Boston specializing in Turkey, religion, politics, and social justice. She holds an MA in religion from Boston University and has been reporting on Turkey since 2012. Her work has appeared in Foreign Affairs, Religion News Service, and Ahval (a Turkey-focused online news site) among other publications. Follow her work at ClaireSadar.com.