New York Times Op-Ed:  The I.R.S. Is Trying to Uphold a Core Liberal Principle, by Benjamin M. Leff (American; Google Scholar):

Last month the Internal Revenue Service did something remarkable: It proposed allowing houses of worship to engage in political speech and even endorse candidates without jeopardizing their ability to accept tax-deductible contributions.

This proposal — which comes in the wake of years of advocacy by conservative Christian activists — constitutes a major reinterpretation of the so-called Johnson Amendment, the rule that since 1954 has prevented charities, including churches, from endorsing candidates. To its critics, the proposal threatens to transform houses of worship into political action committees, enabling donors to influence elections by funneling tax-deductible money through them.

But the core of the I.R.S.’s proposal is correct, and you don’t need to be a conservative evangelical to think so. It’s a central liberal principle that government should not restrict political speech. The I.R.S. can and should revise the Johnson Amendment to protect the speech rights of charities without creating a campaign finance loophole.

Granted, striking that balance is tricky. On the one hand, it seems obvious that the First Amendment should prohibit the government from telling rabbis, for example, what they can and can’t say to their congregants during a synagogue service. On the other hand, the government shouldn’t force taxpayers to subsidize political speech they may not agree with — which, in effect, is what allowing tax-deductible contributions to fund political campaigning would do.

The solution, I believe, is to permit charities to endorse candidates, but to limit as much as possible the charities’ use of funds to promote that endorsement. One way to do that is to limit political speech to internal communications — specifically, face-to-face discourse among congregants or members. Charities should be prohibited from engaging in political speech in outside settings. For example, a pastor should be able to endorse a political candidate in a sermon, but not if that sermon is posted on a church website. Nor should the pastor’s church be allowed to publicly campaign for a candidate. …

In an ideal world, the I.R.S. would simply issue its own guidance on how to understand the Johnson Amendment — guidance that would be clear and applicable to all charities. It still could. But until then, a single federal judge has the choice of adopting the I.R.S.’s poorly drafted recommendation or issuing an order of his own that better clarifies the nature and limits of this long-overdue change in the law.

I hope he does the right thing.

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

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