In a stipulation included in a Joint Motion for Entry of Consent Judgment, the IRS stated that when a church communicates with its congregation in a customary manner concerning “electoral politics viewed through the lens of religious faith”, it’s not electioneering, which would be prohibited under Section 501(c)(3) of the Internal Revenue Code.

When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither “participate[s]” nor “intervene[s]” in a “political campaign,” within the ordinary meaning of those words. To “participate” in a political campaign is “to take part” in the political campaign, and to “intervene” in a political campaign is “to interfere with the outcome or course” of the political campaign. See Participate, Merriam-Webster’s Dictionary (2025); Intervene, Merriam-Webster’s Dictionary (2025). Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.

Rule of Law

Do churches (tax term that generally includes synagogues, temples, mosques, and all houses of worship) have the right to engage in activities that support or oppose candidates for public office (“electioneering”)? The answer is … yes.

Do 501(c)(3) organizations have the right to engage in electioneering? The answer is … no, if they want to continue to be tax-exempt under Section 501(c)(3) of the Internal Revenue Code.

Accordingly, a church has the constitutional right to engage in electioneering, but it cannot keep the privilege of being tax-exempt under 501(c)(3) if it chooses to do so. Key court cases leading to this conclusion:

Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983)

Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000)

Enforcement

By all accounts, the IRS has failed to consistently enforce the 501(c)(3) electioneering prohibition, also referred to as the Johnson Amendment, even when the violations and complaints are very public. According to law professor Lloyd Hitoshi Mayer, in an article published in The Chronicle of Philanthropy:

There’s only one known instance of a church losing its tax-exempt status because it violated the Johnson Amendment. In that case, a church in Binghamton, New York, published full-page newspaper ads criticizing Bill Clinton during his 1992 presidential campaign.

Nevertheless, it remains the law. And, generally, it appears to have broad support of the nonprofit sector, including churches, and the broader public. See, e.g., Protecting the Johnson Amendment and Nonprofit Nonpartisanship (National Council of Nonprofits).

Implications of New IRS Position

Should the court approve and enter the requested consent judgment, the judgment would apply only to the two church plaintiffs (Sand Springs Church and First Baptist Church Waskom). It would not establish new generally applicable law. Moreover, there is significant doubt that the court can enter the declaratory judgment sought. See, e.g., Poll: The Church and Endorsing Candidates (Sam Brunson, By Common Consent).

Regardless of whether the consent judgment is entered, the IRS position may indicate an upcoming attempt to change the rules, subject to requirements of the Administrative Procedures Act, including a public notice and comment period. This prompts the need to further analyze the IRS position in the joint motion. What are “customary channels of communication” and what is “in connection with religious services”? Do the dictionary definitions of “participate” and “intervene” have any relevance? Should the comparison to a family discussion similarly apply to a charity other than a church making statements to the charity’s membership?

Without a change in the rules, it remains concerning that the IRS believes it has no legal claim to assert that a church has violated the electioneering prohibition if the church is communicating with its own congregation. In contrast to a lack of enforcement, this represents a new rationale that may embolden churches to openly support candidates for public office. But even that is not the biggest problem.

Anyone can create a church. And unlike with other charities, a church can self-declare itself to be tax-exempt under 501(c)(3) without applying to, or receiving formal recognition from, the IRS. Moreover, a church never has to file annual information returns (Forms 990) with the IRS or any state tax agency.

This set of circumstances could allow a wealthy individual seeking to influence an election to create a 501(c)(3) church, donate a large amount to the church, reap the charitable contribution tax deduction, then have the church spend money to build a membership/congregation, and send messages to the membership about who they should elect. This might all take place below any regulator’s radar, and the church could dissolve the following year. Rinse and repeat for the next election cycle.

Based on the new IRS position, there may be no limit on what portion of the church’s overall activities could be devoted to the electoral messaging since the IRS said it was not electioneering. Such communications would also likely not constitute lobbying, which would be subject to certain limitations under applicable tax laws.

Additional Resources

IRS says churches may endorse political candidates despite a decades-old federal statute barring them from doing that (Lloyd Hitoshi Mayer, The Conversation)

IRS says churches can now endorse political candidates (Daniel Burke, Bob Smietana, Jack Jenkins, NPR)

Don’t Degrade Church With Politics (Elizabeth Bruenig, The Atlantic)

The Electioneering Prohibition: A Closer Look (Erin Bradrick)

Nonprofit Advocacy: Sign-On Letter

Nonprofit Organization Sign-on Letter: Tell the Trump Administration to Protect Nonprofit Nonpartisanship – Interfaith Alliance, Americans United for Separation of Church and State, National Council of Nonprofits, Independent Sector, Public Citizen, American Humanist Assocation, and Freedom From Religion Foundation – Deadline for signatures: Monday, July 21 at 9 pm ET / 6pm PT