In sum, the Johnson Amendment is neither unconstitutional nor constitutionally required. That leaves one question unanswered, however: Is it a good idea as a matter of policy? Here, liberals and conservatives appear to have lost their bearings.
In many contexts, liberals oppose the notion that government can constrain speech because it has funded that speech. Consider debates over funding of the arts, the so-called abortion "gag rule," and the Solomon Amendment (which cuts off funding to universities that, pursuant to their anti-discrimination polices, deny campus access to military recruiters because of the "don't ask, don't tell" law). In each of these contexts, liberals have argued that the First Amendment restricts the ability of the government to limit the speech of recipients of public funds. Why are liberals now generally defending the Johnson Amendment against the same argument by the pastors?
Conversely, conservatives have frequently championed a principle traceable to Thomas Jefferson: the notion that people should not be required to fund the speech of those who disagree with them. For example, conservatives have persuaded the Supreme Court that labor unions may not charge non-union members of their collective bargaining unit for the unions' own "ideological" activities. Why, if conservatives support this principle for unions, do they oppose it for churches?
The answer to both questions seems obvious. The particular pastors involved in the Pulpit Initiative are religious conservatives who have either endorsed the candidacy of John McCain or opposed the candidacy of Barack Obama, or both. Thus, liberals oppose and conservatives favor their activities.
Michael C. Dorf,
Why the Constitution Neither Protects Nor Forbids Tax Subsidies for Politicking from the Pulpit, And Why Both Liberals and Conservatives May be on the Wrong Side of this Issue
http://writ.news.findlaw.com/dorf/20081006.html
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