Document Type
Article
Publication Date
11-2020
Journal
University of Pennsylvania Journal of Law & Public Affairs
Volume
6
Issue
1
First Page
115
Last Page
176
Abstract
The so-called Johnson Amendment is that portion of Section 501(c)(3) of the Internal Revenue Code that prohibits charities from "intervening" in electoral campaigns. The intervention has long been understood to include both contributing charitable funds to campaign coffers and communicating the charity's views about candidates' qualifications for office. The breadth of the Johnson Amendment potentially brings two important values into conflict: the government's interest in preventing tax-deductible contributions to be used for electoral purposes (called "nonsubvention") and the speech rights or interest of charities.
For many years, the IRS has taken the position that the Johnson Amendment's prohibition on electoral communications includes the content of a religious leader's speech in an official religious service -- a minister may not express support or opposition to a candidate from the pulpit. For at least as many years, some commentators and legislators have found this application of the Johnson Amendment especially problematic, since it implicates directly the freedom of houses of worship speech and religious exercise. These Johnson Amendment critics sought to provide some carveout from the Johnson Amendment's general application to permit speech that includes ministers pulpit speech without creating a massive loophole for the Johnson Amendment's generalprohibitionon campaign intervention. Other commentators have long argued that a limited carve-out for certain types of speech is not possible--that permitting any communication of the organization's views, even in pulpit speech, would provide too large a loophole in the overall treatment of campaign contributions and expenditures.
This Article reviews the leading proposals to fix the Johnson Amendment, and finds them all lacking. It then proposes four types of modifications that could be used to properly balance the speech interests of charities (including churches) with the government's interest in a level playing field for campaign expenditures (nonsubvention). These proposed modifications include: (i) a non-incremental expenditure tax, (ii) a reporting regime, (iii) a disclosure regime, and (iv) a governance regime. The Article concludes that in order to properly balance nonsubvention with speech interests of charities, a modification of the Johnson Amendment should include some version of all four types of interventions.
Recommended Citation
Benjamin Leff,
Fixing the Johnson Amendment without Totally Destroying It,
6
University of Pennsylvania Journal of Law & Public Affairs
115
(2020).
Available at:
https://digitalcommons.wcl.american.edu/facsch_lawrev/2127