Volume 43, Issue 2 (Spring 2025)
By Samuel D. Brunson*
Seven decades ago, Congress enacted the so-called Johnson Amendment. This provision of tax law forbids tax-exempt public charities from endorsing or opposing candidates for office. Under the plain language of the Internal Revenue Code, an organization that violates the Johnson Amendment does not qualify as tax-exempt.
The legislative history underlying the Johnson Amendment is sparse, and it provides few clues as to Congress’s reason for enacting it. In the ensuing years, though, it has become clear that Congress does not want to subsidize campaigning activities, and this has become the most convincing justification for the Johnson Amendment. However, the design of the current Johnson Amendment goes further than merely refusing to subsidize—it entirely prevents public charities from engaging in campaigning speech.
This prohibition raises significant constitutional concerns. Campaigning speech is a quintessential example of what the courts classify as “core political speech,” and courts grant core political speech expansive protection. The Johnson Amendment’s blanket prohibition on campaigning thus very likely violates public charities’ First Amendment rights. Moreover, in part because of the draconian nature of the penalty, the Internal Revenue Service rarely enforces the Johnson Amendment.
This state of affairs is far from ideal. Having an unenforced, overly broad, likely unconstitutional law on the books prevents risk-averse public charities from engaging in behaviors that they are entitled to engage in, and at the same time, it does nothing to prevent bad actors from using subsidized speech to endorse and oppose political candidates.
This Article proposes an update and replacement for the Johnson Amendment. This new Johnson Amendment would directly target subsidies, requiring public charities to calculate the value of their political speech and requiring donors to reduce their charitable deductions by the share of such spending. It also proposes safe harbors for public charities that do not want to engage in partisan politics and do not want to have to calculate spending on politics. The new Johnson Amendment would accomplish the putative goals of the current Johnson Amendment without violating the First Amendment.
