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Trump claims he got rid of the Johnson Amendment. Is that true?
Responding to compliments about his election victory and support from evangelical voters, President Donald Trump told Christian Broadcasting Network’s founder Pat Robertson that he had signed an order to empower religious leaders to speak up politically.
"We've really helped because I've gotten rid of the Johnson Amendment, now we are going to go try to get rid of it permanently in Congress, but I signed an executive order so that now people like you that I want to hear from, ministers and and preachers and rabbis and whoever it may be, they can speak," Trump said in a July 12 interview with Robertson. "You know, you couldn’t speak politically before; now you can. And I want to hear from you and others that we like."
During the campaign Trump accurately said that an amendment pushed by Lyndon B. Johnson threatened religious institutions with the loss of their tax-exempt status if they openly advocated their political views. Trump then said he would repeal that language.
So Trump’s comments to Robertson left us wondering if in fact Trump had "gotten rid of the Johnson Amendment" and if because of his executive order religious leaders were able to speak up politically.
Politics and religion experts told us Trump’s remarks were misleading on several grounds: He does not have the constitutional authority to eliminate the law, and religious leaders have been speaking up politically even before Trump’s order, despite the legal restriction.
We noted in a previous fact check of Trump’s remarks about the "Johnson Amendment" that the restriction comes from the Internal Revenue Code, and that it applies to all 501(c)(3) organizations, known as charitable organizations.
The term "Johnson Amendment" derives from America’s 36th president, Lyndon B. Johnson, who became president when John F. Kennedy was assassinated in 1963. Johnson championed the restriction in 1954 when he was a U.S. senator running for re-election. A conservative nonprofit group that wanted to limit the treaty-making ability of the president produced material that called for electing his primary opponent, millionaire rancher-oilman Dudley Dougherty.
In response, Johnson, then Senate Democratic minority leader, introduced an amendment to section 501(c)(3) of the federal tax code dealing with tax-exempt charitable organizations, including groups organized and operated exclusively for religious, charitable, scientific, literacy and educational purposes, or to prevent cruelty to children or animals. The objective was to restrict the involvement in partisan politics of organizations that wanted to be exempt from paying taxes.
The law says: "Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes."
Trump told Robertson that he had "gotten rid of the Johnson Amendment."
But that’s misleading. Trump cannot get "rid of" a law because a president does not have that constitutional authority. Trump needs Congress to take action; he even referenced that process when he added to his statement, "now we are going to go try to get rid of it permanently in Congress." (A bill on this topic introduced by Rep. Steve Scalise, R-La., is in the Ways and Means Committee.)
We asked the White House for more information on Trump’s comments but did not get a response.
What Trump has done is sign an executive order that tells the Treasury Department to be lenient in its enforcement of current law against religious organizations.
Specifically, the May 4 order said:
"The Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury."
The order defines adverse action as the imposition of any tax or tax penalty, delay or denial of tax-exempt status, disallowance of tax deductions for contributions made to the charitable organizations, "or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit."
An array of experts and groups said Trump's order doesn't achieve much.
"As of right now, Trump's comments that he got rid of the Johnson amendment are inaccurate and an overstatement," said Jeanine Kraybill, who researches politics and religion and is an assistant professor of political science at California State University-Bakersfield.
Trump did not get rid of the Johnson Amendment, "he just ordered that apparently it not be enforced," said Kenneth D. Wald, a distinguished professor of political science at the University of Florida.
The American Civil Liberties Union expressed concerns about Trump’s executive order based on a leaked draft, but later said it had "no discernible policy outcome."
The conservative group Alliance Defending Freedom, which advocates on behalf of pastors and churches and against the Johnson Amendment, said Trump’s order came up short and described it as just "vague instructions" with wiggle room to be ignored.
Experts also told us that it's inaccurate to suggest religious leaders could not speak politically.
"The regulations have never been designed to prevent ministers or other church officials from speaking in church about social and political issues," said Wald, the University of Florida professor. What they are forbidden from doing is formally endorsing candidates, Wald said.
Also, the Johnson Amendment has not been strongly enforced over the years, and preachers and pastors have openly challenged it, said Kraybill, the professor at California State University-Bakersfield.
Kraybill said that since 2008 the "Pulpit Freedom Sunday" movement, which began with the Alliance Defending Freedom, has led pastors of primarily conservative churches to intentionally preach about candidates and encourage their congregations to vote a certain way. A pastor in San Diego told CNN last year that his church records sermons and sends them to the Internal Revenue Service "in the hopes of provoking a lawsuit," and that those efforts have been fruitless.
"It has been quite rare as matter of practice for the IRS to enforce that rule," said Kent Greenfield, a law professor at Boston College.
Pew Research Center in August 2016 published survey results that said about two-thirds of Americans who had attended religious services had heard clergy at their church speak about social and political issues. Some churchgoers had even heard clergy speak in support or opposition of a specific presidential candidate, Pew found.
With that context, Trump’s executive order in many ways attempts to codify the status quo. But it doesn’t eliminate the Johnson Amendment.
Trump said, "I've gotten rid of the Johnson Amendment … I signed an executive order so that now ... ministers and and preachers and rabbis and whoever it may be, they can speak. You know, you couldn’t speak politically before, now you can."
Experts say Trump’s claim is an overstatement because his executive order merely directed the Treasury Department to be lenient in its enforcement of the law. The president does not have constitutional authority to eliminate laws. In practice, the law has rarely been enforced, experts said, and clergy members have spoken about social and political issues, or even spoken in favor or against candidates.
Trump’s statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.
CBN, President Donald Trump interview with Pat Robertson, July 12, 2017
White House, Executive order Promoting Free Speech and Religious Liberty, May 4, 2017
PolitiFact, Donald Trump correct — Lyndon Johnson passed legislation limiting political activity of churches, July 22, 2016
IRS, The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations, Page last reviewed or updated: Sept. 13, 2016
IRS, Exemption Requirements - 501(c)(3) Organizations, Page last reviewed or updated Jan. 26, 2017
Congress.gov, H.R.781 - Free Speech Fairness Act, introduced Feb. 1, 2017
National Constitution Center, Constitution Check: Does a president have the power to repeal a federal law?, July 17, 2012
Email interview, Jeanine Kraybill, assistant professor of political science at California State University, Bakersfield, July 16, 2017
Phone interview, Kenneth D. Wald, a distinguished professor of political science at the University of Florida, July 14, 2017
Phone interview, Kent Greenfield, a law professor at Boston College, July 14, 2017
Pew Research Center, Many Americans Hear Politics From the Pulpit, Aug. 8, 2016
CNN, Pastors take to pulpit to protest IRS limits on political endorsements, Oct. 1, 2016
Alliance Defending Freedom, President Trump issues executive order on religious freedom, May 4, 2017
Alliance Defending Freedom, Pulpit Freedom Movement
American Civil Liberties Union, ACLU Statement on so-called 'Religious Freedom' executive order, May 4, 2017
USA Today, Trump to sign executive order to 'protect and vigorously promote religious liberty', first published May 3, 2017, updated May 4, 2017
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