On the Hill: How Arcane Senate Rules Saved the Johnson Amendment (For Now)

For months, the American Humanist Association (AHA) and other nontheistic organizations have been fighting bills that seek to repeal the Johnson Amendment, a legal provision prohibiting tax-exempt 501(c)(3) organizations from participating in campaign politics. We’ve issued action alerts to activate our members, sent out coalition letters, hosted congressional briefings, organized a grassroots lobby day, directly lobbied US senators and representatives, and even went on C-SPAN to make our case.

And while all of these actions helped raise congressional awareness of the amendment and the consequences of repealing the law, what ultimately saved the law were the actions of an unelected congressional advisor.

Elizabeth MacDonough is the US Senate parliamentarian, a position most Americans are likely unfamiliar with. The parliamentarian, according the Senate’s own website, is “the Senate’s advisor on the interpretation of its rules and procedures.” Essentially, MacDonough advises senators on how Senate proceedings should occur, what they can and can’t do, and why they can or can’t do something. Of course, as an advisor her recommendations can be ignored, but that hasn’t been done since 1975 as senators recognize that the parliamentarian is a much-needed referee who must be sufficiently empowered (or at least deferred to) in order to keep the US Senate relatively orderly and fair.

MacDonough ultimately ruled that the language within last month’s tax reform bill, which would have weakened the Johnson Amendment, did not comply with the rules of reconciliation, which is the process by which a bill can be approved by a simple majority without the threat of a filibuster. As the language weakening the Johnson Amendment did not have a budgetary impact, which is required for any bill to be considered under the reconciliation process, MacDonough advised that the language be removed from the greater bill, which it eventually was.

This was a massive victory for both secularists and progressive religious communities alike, but one that we should feel somewhat uneasy about. We did not win this victory because conservative members of the House or Senate saw the light of reason, but because of a quirk in the Senate’s rules process that worked in our favor. And while it’s comforting to note that Republicans don’t believe that any Johnson Amendment repeal can be passed under normal rules (requiring a filibuster-proof reconciliation period to potentially pass a repeal), Republicans can still use the reconciliation process in the future as they consider budgetary legislation.

What will ultimately be required to ensure the safety of the Johnson Amendment is a bipartisan effort between Republican and Democratic members of the Senate to openly oppose any repeal. But in order for that future to become a reality, humanists must keep up the pressure on their Republican elected officials and make it known that we don’t want the Johnson Amendment to go anywhere.