The Johnson Amendment, a provision of tax law that currently bars churches and charitable groups from participating in electoral politics, gained national attention when the House of Representatives passed a tax reform bill that included a proposal to repeal the rule. Although the provision was recently removed from the Tax Cut and Jobs Act as part of the conference process, upcoming must-pass legislation may present several more opportunities to strike it from the books. While repealing the amendment is a contentious question, there’s at least one political candidate who has already made it a part of his campaign. Ohio State Treasurer Josh Mandel, running to secure the Republican nomination against Senator Sherrod Brown (D-OH) in 2018, has said that “the United States House and Senate should make [limiting the enforcement of the Johnson Amendment] law.” His campaign has taken it a step further: in late August, he announced the creation of a “faith outreach team” whose first goal is the full repeal of the Johnson Amendment. Mandel’s support for diminishing or overturning the Johnson Amendment is particularly notable because he has been a beneficiary of millions of dollars of spending by dark money groups: nonprofit organizations that can inject massive amounts of anonymously contributed funds into political elections. A repeal of the Johnson Amendment would almost certainly increase Mandel’s ability to exploit this campaign finance loophole.
The Johnson Amendment, named after then-Senator Lyndon B. Johnson, was adopted in 1954. The amendment prohibits all section 501(c)(3) nonprofits — religious organizations and charities — from participating in political campaign activities, such as explicitly endorsing or opposing a candidate. Opponents of the Johnson Amendment argue that it restricts both freedom of religion and freedom of speech. As a candidate, President Trump promised to do away with the amendment; once in office, he signed an executive order to minimize its effect.
However, supporters of the Johnson Amendment note that it prevents the politicization of charities and places of worship, and that its repeal could create a troubling new avenue for dark money to enter the political system. Anonymous donors could contribute to these groups in order to spend more money on political campaigns. Additionally, unlike contributions to section 501(c)(4) social welfare groups, which are the most common type of nonprofit used to intervene in elections, contributions to section 501(c)(3) nonprofits are tax deductible. In effect, repeal of these provisions would result in the public subsidizing political activity.
Mandel has described the Johnson Amendment as “overreaching.” He also has ties to dark money groups that have bolstered his previous campaign and have already pledged to support his current endeavor for higher office. CREW has previously detailed how a former Mandel aide, Joel Riter, is connected to a number of nonprofit organizations supported by anonymous donors that have spent millions of dollars on political campaigns. For example, he was the chairman of the Government Integrity Fund (GIF), a nonprofit that spent millions supporting Mandel through “issue ads” and funding a super PAC that also supported him in his ultimately unsuccessful 2012 bid for Senate. GIF paid for ads lauding Mandel’s accomplishments and attacking his opponent, Sen. Sherrod Brown (D-OH), that ran in the spring and summer before the two faced off at the ballot box. GIF ultimately paid $1.08 million for the ads (CREW has filed a complaint against GIF based on its 2014 spending).
While GIF has not yet spent to support Mandel in his current campaign, another nonprofit affiliated with Riter, Citizens for a Working America (CWA), donated $300,000 to the Ohio Freedom Fund, a super PAC established in November 2016 to support Mandel. Riter is most recently listed as president of CWA. CWA’s donations to the Ohio Freedom Fund account for more than 67 percent of what the super PAC has reported raising thus far.
At least one member of the dark money network supporting Mandel is also deeply connected to one of the main organizations challenging the Johnson Amendment. Ohio lawyer David Langdon, who has worked for many of the nonprofits and super PACs in the network, also works closely with the Alliance Defending Freedom, an organization described as the “largest legal force of the religious right.” ADF is a section 501(c)(3) organization, meaning that it would be able to more freely participate in political campaigns were the Johnson Amendment fully repealed. While political action could not be its primary activity, it would be able to endorse candidates and donate directly to campaigns even as its donors remained largely anonymous. Indeed, ADF has worked to overturn the Johnson Amendment for years, hosting an annual “Pulpit Freedom Sunday” in an attempt to launch a constitutional challenge to the law. A profile of Langdon on ADF’s website notes that he has been “as involved as anyone can be with the Alliance Defense Fund [ADF’s previous name] without actually being on staff.”
Proponents of fewer restrictions on political activity by nonprofits have seen their influence grow in the Trump administration. The New York Times reported that ADF has been among those “privately advising” the Justice Department under President Trump. Indeed, Attorney General Jeff Sessions spoke to the group behind closed doors in July. As these voices have gained traction in Washington, the threats to the Johnson Amendment have increased. In November, the House of Representatives passed a tax reform bill that included a provision to roll back the Johnson Amendment for all section 501(c)(3) nonprofits; the provision was dropped while reconciling the bill with the Senate version.
While we can’t know for sure what is driving Mandel’s stance against the Johnson Amendment, the increased efforts to undermine it are likely good news for him in more ways than one: Mandel’s campaigns have already benefited from dark money, and his ability to do so would only increase if tax-deductible section 501(c)(3) organizations could participate and spend in political campaigns.