Benjamin Leff (American; Google Scholar), Challenging the Johnson Amendment: What SAFE SPACE Gets Right — and Wrong, 185 Tax Notes Fed. 51 (Oct. 7, 2024):

In this article, Leff argues that the IRS’s interpretation of section 501(c)(3)’s prohibition on campaign intervention (the Johnson Amendment) is unconstitutional, as claimed in a recent Tax Court petition, but that the petitioner in that case unnecessarily asserts a dangerously broad strategy for vindicating charities’ free speech rights.

Introduction
There has long been a scholarly debate about the so-called Johnson Amendment, which is the statutory provision that prohibits charities from “intervening” in campaigns for public office. Some scholars argue that the Johnson Amendment, or at least the IRS’s interpretation of it, unconstitutionally prevents charities from exercising their fundamental rights to speech or religious liberty. Activists have tried to provoke IRS enforcement of the prohibition so they could argue their interpretation of the Constitution in court, but the IRS appeared to be avoiding litigation on the issue. On March 18, Students and Academics for Free Expression, Speech, and Political Action in Campus Education Inc. (SAFE SPACE) sued the IRS in Tax Court after the agency failed to act on the organization’s application for tax-exempt status, which described SAFE SPACE’s plan to endorse candidates for public office on its website. This lawsuit represents the first time in decades that there is pending litigation about the constitutionality of the IRS’s interpretation of the Johnson Amendment. 

This article argues that the IRS’s current interpretation of the Johnson Amendment is unconstitutional but that narrow changes to that interpretation would fix it. SAFE SPACE is right that the Constitution protects a charity’s right to endorse a candidate, but the way SAFE SPACE plans to endorse candidates (directly on its website) goes well beyond what is necessary to fix the constitutional infirmity and could open the floodgates to vast amounts of tax-subsidized campaign spending, with disastrous results. Because SAFE SPACE has a plausibly compelling case that the IRS’s interpretation of the law prevents charities from exercising their constitutionally protected speech rights, the Tax Court might be persuaded to side with it. But because SAFE SPACE’s strategy for vindicating its rights goes well beyond what the Constitution protects, there is a risk that the Tax Court will open the door too wide for charities seeking to influence elections, permitting them to use substantial amounts of tax-deductible contributions to fund their efforts. This article explains how the Tax Court (or the IRS) could modify the IRS’s interpretation of the Johnson Amendment without opening the door to the use of tax-subsidized funds, such as tax-deductible donations.

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