Johnson Amendment: National Association of State Charity Officials Weighs In

We’ve previously weighed in on our strong opposition to any change in the law that would allow public charities to use their resources to support or oppose political candidates. This is precisely why we, along with nearly 4,500 other organizations from every state and segment of the charitable nonprofit community, signed the Community Letter in Support of Nonpartisanship: to protect the 501(c)(3) community from the ravages of partisan politics. Yesterday, the National Association of State Charity Officials (NASCO) formally joined this opposition to repeal of the Johnson Amendment.

Here is the entire text (without the footnotes) from the NASCO Letter to our Congressional leaders:

As President of the Board of Directors of the National Association of State Charities Officials, I write on behalf of the Board to express our deep concern about efforts to repeal or weaken a long-standing provision in federal law – the so-called “Johnson Amendment” – that prohibits 501(c)(3) tax-exempt organizations from endorsing, opposing, or contributing to the campaigns of candidates for public office. We believe that weakening or repealing the Johnson Amendment would adversely impact our member offices’ ability to protect the integrity of charitable assets and charitable solicitations. We urge you to oppose these efforts. These efforts include H.R. 172, the Act to Restore the Free Speech and First Amendment Rights of Churches and Exempt Organizations by Repealing the 1954 Johnson Amendment (the “Act to Restore Free Speech”) and H.R. 781, the Free Speech Fairness Act. The Act to Restore Free Speech strikes out language from the Internal Revenue Code that prohibits tax-exempt organizations from participating in or intervening in any political campaign (“electioneering”). The Free Speech Fairness Act seeks to deem certain statements made in the ordinary course of an organizationactivities as not in violation of the Johnson Amendment.

NASCO is an association of state charities officials, including state Attorney General offices, Secretaries of State offices, and other state offices charged with preventing the misuse of charitable assets, ensuring that trustees of charitable trusts fulfill their fiduciary duties, and enabling donors to make informed choices about which charitable causes to support. Electioneering is not considered a charitable purpose under common law, and many state charities regulators would consider expenditure of charitable funds on such purposes to be inappropriate, possibly illegal. The Johnson Amendment is consistent with this tenet of common law.

Eliminating or weakening the Johnson Amendment could create the appearance of a conflict between obligations charities have under federal tax law (for purposes of retaining tax exemption) and obligations they have under common law. Removing the prohibition on electioneering from the tax code could give charitable organizations the impression that they may spend their resources supporting or opposing candidates for office. Under common law, they may not.

Further, removing that prohibition would undermine the charitable sector in many ways and would be bad policy. First, permitting charities to endorse, oppose, or contribute to political candidates would open the door to pressure being put on charities to devote their resources to such election-related uses rather than to their charitable purposes. In addition, charitable giving has traditionally enjoyed broad popular support in this country. Private citizens, foundations, and corporations collectively donated $390 billion to charity in 2016. The Johnson Amendment helps give donors confidence that their donations will be used for charitable purposes and not electioneering or other private, non-charitable purposes. If schools, hospitals, land trustsmuseums, poverty relief organizations and the like were permitted to endorse and support candidates for office, philanthropy would acquire a political dimension rather than serving as the vehicle for public good that it is today.

 Importantly, thousands of the same organizations that would be affected by efforts to weaken or repeal the Johnson Amendment have spoken out to oppose those efforts. Churches, religious leaders, national, regional and state and local nonprofit organizations have voiced strong support for maintaining the independence from partisan politics that the current law protects. These organizations emphasize that the Johnson Amendment “has enabled nonprofits to focus on serving their communities, rather than catering to the desires of political candidates and their powerful donors.” Further, they have emphasized that [n]onpartisan credibility is critical to the ability of 501( c )(3) organizations to work with elected officials of all parties at the local, state, and federal levels to address community needs.” Research and polling by multiple and diverse entities consistently and overwhelmingly has shown that the majority of Americans, by a wide margin, support maintaining the nonpartisan protections that the Johnson Amendment provides.

Repealing or weakening the Johnson Amendment would also compromise the ability of state charities officials to identify and take action against fraud and abuse of charitable solicitations and use of charitable assets. NASCO operates as a nonpartisan association by which states may share information and undertake collective educational and non-partisan enforcement efforts to protect the integrity of charitable assets. The duty of our respective state offices to prevent and take action against fraud in charitable solicitations and mismanagement of charitable assets is universal and nonpartisan. The Johnson Amendment ensures that nonprofits may be independent of electioneering and political campaigning, which also helps ensure that charities regulators can work cooperatively to combat charities fraud and protect charitable assets, regardless of the political affiliation of our elected and appointed Attorneys General, Secretaries of State or other officials.

Public trust is critical to the vitality and continued success of the charitable sector. For sixty-three years, the Johnson Amendment has preserved the integrity and independence of charitable organizations and foundations by creating a partisan-free public forum for people of all beliefs and interests to collaborate and exchange ideas on solving community problems, fostering art and culture, and promoting the public good without the distractions of party labels and political rhetoric. The Johnson Amendment is sound policy and works in harmony with charities law. The NASCO Board of Directors joins the thousands of nonprofit and religious organizations urging Congress to maintain the Johnson Amendment. Efforts to repeal it should be opposed.


Karen Gano

President, National Association of State Charities Officials (NASCO)