Never Let Up in Protecting What’s Important: The Johnson Amendment and Nonprofit Nonpartisanship

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When an existential threat looms – such as the repeal or weakening of the Johnson Amendment that, for 64 years, has protected the nonprofit community from the destructive forces of divisive partisan politicking – I can’t think of any better advice than the stirring words of Winston Churchill who, in England’s darkest hour, declared:

“We shall defend our island, whatever the cost may be, we shall fight on the beaches,

we shall fight on the landing grounds, we shall fight in the fields and in the streets,

we shall fight in the hills; we shall never surrender."

The threat to the longstanding Johnson Amendment is now as grave as I’ve seen in the last 18 months of intense challenges. After the House passed anti-Johnson Amendment language in a rider to a must-pass spending bill (H.R. 6147), the Senate did not (although not for lack of desire). Now, the fate of the Johnson Amendment and its ability to protect the 501(c)(3) community from the toxicity of partisanship teeters before a House-Senate conference committee. Worse, both relevant subcommittee chairs have sponsored anti-Johnson Amendment legislation seeking to politicize 501(c)(3) organizations.

The conference committee met late last week and again today without resolution. Conferees can (1) keep that controversial language and pass the bill by September 30 (when the current federal fiscal year ends), (2) reject that language and pass a clean bill by September 30, or (3) delay deciding until after the elections. If they delay, a Continuing Resolution will temporarily fund, from October 1 until December 7, all federal operations in spending bills not passed by September 30.  

For some, the ambiguity of the situation – not knowing whether the language will be in or out – raises the question of how much effort charitable nonprofits, houses of worship, and foundations should be exerting at this time to save the Johnson Amendment. Given the possibility that nothing bad may happen right now, the conventional wisdom may be to relax, wait, and see.

But, as someone who has lobbied at all levels of government and earned both scars and victories because of last-second legislative power plays, I strongly urge the broad nonprofit community to reject that conventional wisdom and take immediate action.

Here are some real-world lobbying lessons I learned years ago as a partner at a law firm and later as Arizona’s Chief Deputy Attorney General:

  • It’s never over until the final vote is cast. The Senate President introduced and rammed through a contentious bill to further their own political ambitions. The House blocked it. The President started horse-trading, giving up a lot in other bills to get the House to pass the desired bill with minor changes, requiring a return trip for a Senate vote. Relying on conventional wisdom, the President knew that the Senate’s slim majority would pass the bill by one vote. The President also assumed that every member of the Senate majority would be available. Moments before the final vote on the bill was queued up, however, one Senator quietly slipped out and “took a walk.” With the final roll call one vote short of passage, the Senate President held the vote open and frantically ordered searches of the entire Senate building, then the parking lot, and later the broader Capitol complex to find the missing Senator. The bill failed to pass. Lessons: Never let up by assuming you have the votes, and never let up in finding another way to prevail.
  • It’s never over until the bill is actually signed into law. After decades of putting up with flaws in the state Open Meeting Law, the competing interests – media groups that demanded more openness and governmental bodies that wanted more clarity – saw a rare opportunity to develop comprehensive reform jointly. Months of arduous negotiations led to an acceptable bill being introduced, some sticking points getting worked out, and bill passage with relative ease. Conventional wisdom held that, with the previously warring factions agreeing to agree for a change, everyone could relax. So, everyone did. Until the Governor shocked all by issuing an unprompted veto. Lessons: Never let up by assuming that everyone in the policy process knows the obvious, and never let up … the Governor signed the same bill into law the next year.
  • It’s never truly over until the legislative session ends. The Speaker of the House introduced a bill that my client opposed. When the bill was brought up in committee for action, we killed it – for the first of many times. But every time we prevailed, the Speaker reached deeper into his bag of legislative procedural tricks. This zombie bill kept crawling out of its legislative grave by way of new legislation, substitute bills, and amendments to other bills in both the House and Senate. Each time, we won another hard-fought victory. Finally, with just a few days left in the session, all deadlines having passed for committees to continue meeting, and only votes left on bills still alive as the final elements of the state spending bill was being hammered out, it was safe for me to fly with my family to another state for a brother’s wedding. We arrived just in time for the marriage vows. Then my phone buzzed, reporting yet another zombie revival: the Speaker created a new way to resurrect this dead bill. That prompted a wild dash back to the state capitol with only hours left in the session, just in time to find the last new “no” vote needed to defeat the bill. Lessons: Never let up by assuming that that a bill is dead forever, and never let up in searching for that last vote needed.

The forces seeking to destroy the Johnson Amendment for their self-serving financial and partisan gains have proven time and again they will not stop. That means that charitable nonprofits, houses of worship, and foundations must remain unrelenting in our vigilance and advocacy to keep the pressure on Congress to preserve the longstanding protection.

Now is always the time to stand up for nonprofit nonpartisanship. Indeed, having been both burned by conventional wisdom and rewarded for rejecting it, I strongly advise to never let up, never stop advocating for what is important. It’s not wasted effort – it’s simply insurance against the unexpected, and a wise investment in the future.

As Winston Churchill wisely warned, “Never, never, never give up.”

To that end, here’s what you can do, now:

Charitable nonprofits, including houses of worship, in states with members of the conference committee on H.R. 6147 (see states marked in green on the map below) have a unique opportunity to stand up for all nonprofits nationwide. Visit this page and scroll down to the map to find contact information, pre-loaded tweets for each conferee, and links to individualized Community Letters. Everyone from other states needs to make your own U.S. Representatives and Senators know that the broad 501(c)(3) community considers any changes to the law protecting nonprofit nonpartisanship to be extremely controversial and objectionable. Call (202-224-3121), email, and tweet your Representatives and Senators.

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