Challenging the Johnson Amendment: What SAFE SPACE Gets Right — and Wrong

Benjamin M. Leff

Benjamin M. Leff is a professor of law at the American University Washington College of Law. He thanks Samuel D. Brunson, whose work on this topic has deeply influenced him.

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.

Copyright 2024 Benjamin M. Leff.
All rights reserved.

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.

This position — that the Constitution protects a charity’s right to endorse a candidate, but only if it obeys very strict rules about how — is counterintuitive to both the supporters of the Johnson Amendment and its detractors. Because this position is so counterintuitive, I decided that it would be best to create my own section 501(c)(3) organization to illustrate the right way to endorse a candidate. I sought to enlist two friends to create a 501(c)(3) organization, the Nonprofit Education Project, to use the correct method for charities to vindicate their constitutionally protected right to communicate their views on candidates — the “alternate means” method. SAFE SPACE is right that the Constitution protects a charity’s right to form an opinion about candidates and some means of communicating that opinion. But SAFE SPACE is wrong that the Constitution requires that the 501(c)(3) organization be allowed to pay for the means of communicating its views, even if the cost of doing so is low or inextricably mixed with the cost of engaging in charitable or educational speech.

The difference between SAFE SPACE’s approach and mine boils down to who pays for the website that is used for the organization’s endorsement. It is that simple. I believe that the difference, while appearing trivial in this case, is actually extremely important and that the consequences if the Tax Court misses that distinction would be disastrous, creating a massive loophole in the tax treatment of campaign spending and effectively repealing the Johnson Amendment altogether. However, my friends persuaded me that illustrating the flaws in SAFE SPACE’s case did not justify creating our own organization, so this article describes not what we actually did, but what we might have done.

SAFE SPACE v. Commissioner

On June 23, 2023, SAFE SPACE submitted a Form 1023, “Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code,” to the IRS.¹ On that form, SAFE SPACE indicated that it plans to endorse candidates for public office by publishing on its website the names of candidates who commit to SAFE SPACE’s “free speech principles.” Even though endorsing candidates on its website violates the IRS’s current interpretation of the Johnson Amendment, the IRS failed to act on SAFE SPACE’s Form 1023 within 270 days, triggering the organization’s statutory right to file a declaratory judgment action in the Tax Court. It did so on March 18. That case has been temporarily dismissed without prejudice so the parties can develop the administrative record at the IRS.

In its petition, SAFE SPACE argues that “section 501(c)(3)’s political speech and lobbying restrictions are . . . not only facially unconstitutional, but also unconstitutional as applied to SAFE SPACE.”² The constitutional argument is not very developed in the petition, with the only support for the claim being a quote from the Supreme Court’s Citizens United decision.³ That opinion makes no mention of section 501(c)(3) but instead addresses “an outright ban, backed by criminal sanctions.” The SAFE SPACE petition argues that “a law that prohibits a nonprofit from ‘creating a Web site telling the public to vote for a Presidential candidate’ . . . is a ‘classic example of censorship’ in violation of the First Amendment.”⁴ While the reference to Citizens United is inapposite, there is a valid legal argument that the Constitution protects the rights of charities to communicate their own views on the qualifications of candidates, and that section 501(c)(3) is Constitutional only to the extent to which it does not act as an outright ban, but instead permits some “alternate means” for charities to communicate those views.

Charities’ Right to Electoral Speech

The constitutional argument about the Johnson Amendment is relatively straightforward. It can be succinctly summarized as follows: The Constitution protects charities’ free speech rights, including the right to endorse a candidate, but the government may constitutionally prevent charities from using what is effectively a tax subsidy for that speech. In other words, the Johnson Amendment is constitutional because it properly balances the speech rights of charities against the government’s interest in preventing charities from using tax-subsidized funds to pay for that speech, which is sometimes called nonsubvention.⁵

The leading case is Branch Ministries.⁶ A church paid for an advertisement to run in a national newspaper four days before the 1992 presidential election that stated, “Bill Clinton is promoting policies that are in rebellion to God’s laws.” It also said, “Tax-deductible contributions for this advertisement gladly accepted.” The IRS revoked the tax-exempt status of the church that paid for the ads, and the church sued, arguing that the Johnson Amendment, at least as applied to it, is unconstitutional. Unsurprisingly, the D.C. federal district court held that the IRS’s revocation was legal, and the D.C. Circuit affirmed.

The district court held that there is no unconstitutional burden on the church’s free exercise because it has an alternate means for expressing its disapproval of Clinton as a candidate. It cited the Supreme Court’s holding in Taxation With Representation that “the availability of such an alternate means of communication is essential to the constitutionality of section 501(c)(3)’s restrictions on lobbying.”⁷ The court explained that “the Church can initiate a series of steps that will provide an alternate means of political communication that will satisfy the standards set by the concurring justices in Regan.” The church would need to create some alternative organization that is not tax-exempt under section 501(c)(3) and use that organization to pay for the advertisement. The court was clear in its ruling that the fact “that the Church cannot use its tax-free dollars to fund such [an alternate organization] unquestionably passes constitutional muster.”⁸

In Branch Ministries, the church had not tried to use any alternate means, so the court did not describe in detail what the precise parameters of such an alternate means would be. However, in relying on the Supreme Court’s Taxation With Representation decision, it invoked the famous concurrence by Justice Harry A. Blackmun, which provides additional detail:

It must be remembered that section 501(c)(3) organizations retain their constitutional right to speak and to petition the Government. Should the IRS attempt to limit the control these organizations have over [their alternate means], the First Amendment problems would be insurmountable. It hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him. Similarly, an attempt to prevent section 501(c)(4) organizations from lobbying explicitly on behalf of their 501(c)(3) affiliates would perpetuate 501(c)(3) organizations’ inability to make known their views on legislation without incurring unconstitutional penalty. Such restrictions would extend far beyond Congress’ mere refusal to subsidize lobbying. In my view, any such restriction would render the statutory scheme unconstitutional.⁹

What are the aspects of the alternate means promised to charities that the Supreme Court and D.C. Circuit seem to identify as constitutionally essential? There is no authoritative description of how an organization should vindicate the rights promised by Blackmun in Taxation With Representation, but the quoted text promises at least two things: First, Blackmun says that the alternate means structure must permit the non-section 501(c)(3) affiliate to communicate “explicitly on behalf of their 501(c)(3) affiliate.” I call that aspect of what is constitutionally essential attribution. Second, Blackmun says that “should the IRS attempt to limit the control these organizations have over [their alternate means], the First Amendment problems would be insurmountable.” In other words, the section 501(c)(3) charity must be allowed to explicitly control its non-section 501(c)(3) affiliate. I call that aspect control. In my view, these two express requirements contain two additional implied requirements. First, the charity must have some mechanism to identify and adopt its own views about candidates, including a belief that one candidate is superior to the others, which I call deliberation; and second, the charity must have some method to communicate that belief — including an express endorsement if it has one — in some way. I call that aspect communication.

In summary, inherent in a constitutionally sound alternate means structure are four promises to 501(c)(3) charities: that they have the right to (1) form an opinion about the qualifications of candidates (deliberation); (2) use some means to communicate that opinion to their non-section 501(c)(3) affiliate (communication); (3) control the affiliate (control); and (4) cause the affiliate to communicate in a way that expressly identifies the opinion as belonging to the charity (attribution).

So what is necessary to satisfy these four requirements? First, to satisfy the deliberation requirement, the charity must be permitted to meet to deliberate and adopt its views on candidates. At the very minimum, that meeting must include its board of directors, who must be permitted to adopt a resolution expressing the charity’s formal view on the candidates, including an express endorsement of one. Second, to satisfy the communication requirement, the charity must be permitted some mechanism to share this resolution with its section 501(c)(4) affiliate — for example, by writing it on a piece of paper and delivering the paper to the affiliate.¹⁰ Third, to satisfy the control requirement, it must be empowered to compel the affiliate to expend funds to distribute or share the content of the communication. Importantly, the funds would be raised by the affiliate on a non-tax-deductible basis. Finally, to satisfy the attribution requirement, the affiliate must be able to communicate that the views, including an express endorsement, come from the charity. It must be able to say, “The Charity endorses Candidate X over Candidate Y in the upcoming general election,” and it must be able to communicate the charity’s reasoning about the matter, not only its own.

While there is no definitive guidance from the IRS on how a charity should use an alternate means to communicate its views on candidates, the guidance that does exist creates barriers that (in the words of Blackmun) “renders the statutory scheme unconstitutional.”¹¹ Generally, the IRS’s leading guidance on the issue, Rev. Rul. 2007-41, 2007-1 C.B. 1421, takes the position that any campaign-related speech that is attributed to a charity violates the Johnson Amendment. This position is made most clear in the section of the ruling that explains how organizational leaders can engage in their own campaign-related speech without violating the rule on behalf of their organizations. The ruling states that organizational leaders may communicate their own views about candidates as long as they do not do so at a meeting or in a publication of the charity, and as long as they do not communicate that their views should be attributed to the charity. The clear implication of this attribution paradigm is that the IRS would not permit an alternate means structure in which an affiliated non-charity organization communicated the charity’s views on a candidate. This attribution paradigm directly affects the attribution requirement that I argue is essential to a constitutionally sound alternate means structure. Moreover, if the IRS takes the position that the Johnson Amendment prohibits any views or opinions about candidates that can be attributed to a section 501(c)(3) charity, the charity is plausibly prohibited from deliberating and communicating its own views about a candidate’s qualifications because the attribution paradigm implies that a charity is prohibited from holding those views in the first place.

There is another aspect of Rev. Rul. 2007-41 that may affect the deliberation requirement. Rev. Rul. 2007-41 prohibits electoral speech by organizational leaders at any official meeting of the organization, so the deliberative speech undertaken by directors or trustees at an official board meeting could be interpreted to be prohibited.¹² Further, a 1999 IRS educational publication explicitly discussed charities’ use of an alternate means structure and concluded that direct actions taken by the human agents of a charity to control a section 501(c)(4) affiliate would themselves constitute a violation of the Johnson Amendment because “an important asset of an IRC 501(c)(3) organization is the time of its officers and directors.”¹³ This logic would presumably apply to deliberation as well. If the (volunteer) time of directors is a valuable asset of the charity, using that time to deliberate about a candidate’s qualifications would constitute a violation of the Johnson Amendment. It would also violate the control and communication requirements because both those actions require the time of human agents of the charity. While these educational materials are not precedential, they provide at least some insight into the IRS’s interpretation of the law. Taken together, Rev. Rul. 2007-41 and the 1999 materials suggest that the IRS does not believe that a charity is permitted to use an alternate means structure to deliberate, communicate, and control campaign-related speech that is properly attributed to itself.

While SAFE SPACE did not elaborate on its argument that the Johnson Amendment is unconstitutional, and it only cited an inapposite portion of Citizens United in support of its claim, there is a valid constitutional argument about the Johnson Amendment. This argument is not that the Johnson Amendment is inherently unconstitutional but that the IRS’s current interpretation of it forecloses a charity from fully using an alternate means strategy, thereby rendering the statutory scheme unconstitutional.¹⁴

The Alternate Means Doctrine

If SAFE SPACE is correct that the IRS’s current interpretation is unconstitutional, why does it matter that it is citing the wrong case in its very brief petition? It matters because SAFE SPACE makes an implicit argument about the alternate means structure by choosing not to use it, and by arguing that it does not need an affiliate to vindicate its political speech rights. This is exactly the strategy that Taxation With Representation chose more than 40 years ago, terminating the section 501(c)(4) affiliate that it had been using for some of its lobbying activities and then arguing that the Constitution protected its right to engage in unlimited lobbying using funds donated on a tax-deductible basis to itself (the section 501(c)(3) organization). The Supreme Court held squarely that the Constitution did not protect a charity’s right to use its own money to engage in unlimited lobbying.

So why does SAFE SPACE think the reasoning in Taxation With Representation doesn’t apply to it? The key to understanding the organization’s argument appears to be its claim that “the unconstitutionality of section 501(c)(3)’s political speech and lobbying restrictions is even more apparent with respect to SAFE SPACE because the low- to no-cost of SAFE SPACE’s political speech and lobbying activities means the government, simply by recognizing SAFE SPACE’s tax exemption, could never be viewed as subsidizing those activities.”¹⁵ In other words, the government’s interest in nonsubvention is not triggered because SAFE SPACE is either not spending any money on political campaign activities or because it is spending very little. The flaw in SAFE SPACE’s logic is that there is potentially a profound difference between not spending any money on campaign speech and spending just a little.

The petition explains that SAFE SPACE would develop a website on which it would endorse candidates and that it would also send email newsletters that would contain the endorsements. Regarding the website, SAFE SPACE argues: “A website is a low-cost, highly effective measure for reaching a wide audience. The website will be hosted for a low, flat fee; there will be no additional expense for developing and hosting additional pages or materials on the website.”¹⁶ Regarding the email newsletters, it explains: “There will be no additional expense for adding an additional section or text to the email newsletters. Like a website, an email newsletter is a low-cost, highly effective measure for reaching a wide audience.”¹⁷ After explaining that it will endorse candidates on a low-cost website and in low-cost email blasts, SAFE SPACE argues that “the cost to SAFE SPACE of endorsing candidates and publishing its endorsements will be zero.”¹⁸ SAFE SPACE does not explain how it gets from explaining that it will pay a low, flat fee for its political campaign activities to arguing that the cost is zero, but I suspect that the missing logic is in the flatness of the fee, not the lowness. That is, SAFE SPACE’s implicit argument is that because it is already paying a flat fee for a website and email newsletter that is used to communicate its educational mission, and because there is no additional cost for adding political campaign communications to the preexisting website and email blasts, the cost of those political campaign activities is zero. This “no additional expense” theory advanced by SAFE SPACE is plausibly the stalking horse of the litigation. A judge could rule for SAFE SPACE and write an opinion, purposely or not, that appeared to imbue that theory with constitutional force. That would be a mistake.

This no-additional-expense theory is what I have called a marginal cost paradigm. Proponents of that paradigm argue that speech or action has no cost if it can be accomplished without making any additional expenditures beyond those already being made for other purposes.¹⁹ There has been significant support for using a marginal cost paradigm to reform the Johnson Amendment to better protect speech rights of charities while also protecting the government’s interest in nonsubvention.²⁰ Some potential reformers think that a narrow exception to the Johnson Amendment for certain low- or no-cost political campaign speech, measured on a marginal cost basis, would permit charities to engage in protected speech while preventing the harms that would be created by fully repealing the Johnson Amendment. For example, Republican lawmakers introduced the Free Speech Fairness Act over several legislative sessions, which purports to do exactly that.²¹ This attempt to carve a limited exception to the Johnson Amendment has been criticized by scholars like Ellen P. Aprill, Samuel D. Brunson, Roger Colinvaux, Nina J. Crimm, Laurence H. Winer, and Edward A. Zelinsky, all of whom have pointed out ways in which adoption of a marginal cost paradigm in the campaign intervention area would permit too much political campaign speech by charities.²²

Aprill used the phrase “cheap speech” to refer to exactly the kind of low-cost political campaign activity that SAFE SPACE proposes to engage in. She lamented that cheap speech can have a massive impact, partially because of low-cost communications technology, but more importantly, because the no-additional-expense theory could go well beyond such inexpensive communication means by extending to other very expensive means of communications as well. These include multimillion-dollar television ad buys, so long as the principal purpose of the advertisements is to communicate a charity’s tax-exempt educational message.²³ This logic would also extend to paid door-to-door canvassing, paid social media advertising, robocalls, and pretty much anything else that political campaigns spend their money on (which is a lot). If the SAFE SPACE litigation is an attempt to get a court to approve some version of its no-additional-expense theory, it may find a court that could fail to properly cabin the scope of whatever exception it provides, opening the door to a dramatic expansion of the use of tax-deductible funds to pay for campaign activities. A court that adopted a no-additional-expense theory of campaign spending would practically repeal the Johnson Amendment outright. This would, in the words of Colinvaux, produce “devastating results for charities and democracy.”²⁴

A Constitutionally Sound Strategy

As discussed earlier, the argument that the Johnson Amendment (or its current interpretation) violates constitutionally protected speech rights must be balanced against the government’s legitimate interest in the fairness and integrity of the campaign-finance system and the charitable sector. Challenges to the Johnson Amendment using a no-additional-expense theory, like SAFE SPACE’s, dramatically alter that balance. A court hearing the SAFE SPACE case might undervalue the government’s nonsubvention interest and repeal the Johnson Amendment or create an overly broad exception that fundamentally alters the campaign finance tax system, creating a loophole that would deeply distort and harm the nonprofit sector. So how should a charity’s right to make known its views on candidates be vindicated while preserving to the fullest extent possible the government’s interest in nonsubvention?²⁵

I have a solution that vindicates the core speech rights of charities while simultaneously maximizing the government’s interest in nonsubvention. Instead of just writing about it, I considered actually creating organizations that use, and therefore illustrate the use of, the alternate means structure referenced in Taxation With Representation and Branch Ministries. That structure involves pairing a section 501(c)(3) charity with an affiliated social welfare organization exempt under 501(c)(4). As described above, I believe that the Constitution requires that the charity be permitted to (1) deliberate and formulate a formal opinion about the candidates, endorsing one if it chooses; (2) communicate that endorsement to its affiliated non-charity; (3) control the affiliated non-charity to ensure that it properly communicates the charity’s views; and (4) have the non-charity attribute the endorsement to the charity (rather than to itself). So I planned to create organizations to do those things without destroying the Johnson Amendment. However, my friends and colleagues made a strong case that actually creating the organizations and applying for tax-exempt status could be perceived as a stunt that puts an unnecessary strain on the IRS and even conceivably the court system. So instead of actually creating the organizations, I am describing what I would have done here.²⁶

First, we would create the charity entity, named the Nonprofit Education Project. Its charitable purpose would be to educate the general public about nonprofit law. We would file articles of incorporation to form a nonprofit corporation, have an organizational meeting to appoint ourselves directors, adopt some simple bylaws, and adopt some basic corporate resolutions. That’s all you need to do to have an organization. In the first year of operation, we would only need to raise enough money to pay the filing fees associated with creating a nonprofit corporation and submitting a Form 1023 to the IRS, around $700. We wouldn’t even create a website. We would want to pass the public support test to avoid private foundation status, so we would need to raise at least 17 donations of $14 each from unrelated persons. After raising enough for the filing fee, we would submit a Form 1023 with the IRS, checking the box that says that we will intervene in a campaign for public office. We would explain on the application the alternate means strategy and why we think that strategy is constitutionally protected even though using it violates existing IRS guidance.

At the second board meeting of the charity, we would authorize the creation of a second organization called the Nonprofit Education Fund. Creating the fund would involve forming another nonprofit corporation, this time making it a membership corporation, with the charity as the sole member with the authority to appoint all three of the fund’s directors (in effect making the fund a subsidiary of the charity). We would then hold a membership meeting of the fund to appoint its directors. Then we would hold a directors’ meeting of the fund to adopt the bylaws and some organizational resolutions.

The fund could file a Form 1024, “Application for Recognition of Exemption Under Section 501(a) or Section 521 of the Internal Revenue Code,” with the IRS, applying for tax-exempt status under section 501(c)(4) as a social welfare organization. Its stated purpose would be educating the general public about nonprofit law but also engaging in legislative activities in furtherance of that purpose and engaging in political campaign activities that are insubstantial in relation to its overall activities. But it isn’t required to do that, so the fund probably wouldn’t. It would just file a Form 8976, “Notice of Intent to Operate Under Section 501(c)(4),” notifying the IRS that it exists and plans to engage in an insignificant amount of campaign intervention. The fund would raise slightly more money than the charity, since in addition to paying its filing fees, it needs funds to create a website. These two organizations are closely entwined, but we would diligently observe the corporate formalities necessary to ensure that they are not treated as alter egos. I even made up hats that say “501(c)(3)” and “501(c)(4)” so the directors/officers of each organization could wear the appropriate hat at the meetings to be sure we knew whose business we were conducting.

After the organizational meeting, the fund would raise some money, and that money could come from a single person because the fund doesn’t need to pass the public support test to avoid being classified as a private foundation. It then would create a website with a separate page called “The Charity’s Corner.” Just like SAFE SPACE’s, the cost of the website would be low and fixed, but unlike SAFE SPACE, the low fixed fee would be paid by the fund, a section 501(c)(4) organization, donations to which are not tax-deductible. The website would generally post educational content, including content devoted to explaining about the interaction of the Johnson Amendment, the First Amendment, and the IRS’s guidance on political campaign activities. Some of that content would appear on the Charity’s Corner page, which explicitly attributes the content of the page to the charity, not to the fund, but of course the fund pays for every part of the website.

At some point before the 2024 election, the charity would put on the agenda of its regularly scheduled board meeting a discussion of the qualifications of candidates for office in some election. At the meeting, the directors would discuss the qualifications of the candidates, deliberate with each other, and possibly come to agreement about the official position of the organization. The discussion could be devoted largely to issues germane to nonprofit law education (the charitable purpose of the organization), but other matters could be discussed as well. If the directors agree, they would make an official resolution of the charity endorsing one candidate over the others. It is my view that the Constitution protects the charity’s right to form this opinion, which I have been calling deliberation.

Soon after the charity’s regular board meeting, at which the endorsement was adopted, the fund would have a regular board meeting, with review of the charity’s endorsement on its agenda. One of the charity’s directors would deliver to the fund a piece of paper with the charity’s resolution endorsing a candidate, thus satisfying the constitutionally protected right of communication. The fund is effectively controlled by the charity, which satisfies the charity’s control right. Finally, the fund would then cause the endorsement to be posted on its website on the Charity’s Corner page, expressly communicating that the endorsement is the opinion of the charity, vindicating the attribution right.

I believe that this alternate means structure does a much better job than SAFE SPACE’s of protecting the government’s interest in nonsubvention. SAFE SPACE’s no-additional-expense theory would permit charities to spend almost unlimited tax-deductible funds on communications that support or oppose candidates, so long as those communications are primarily for the purpose of educating the public about issues. The Nonprofit Education Project’s alternate means approach does not permit the charity to spend funds on communications that contain political campaign speech; those communications must be entirely funded by an affiliate with non-tax-deductible funds. While this approach might still open the door to more campaign speech by charities than is permitted under current law, it would not have the negative impact that SAFE SPACE’s no-additional-expense approach would have because this approach prevents charities from using their tax-deductible funds to pay for campaign speech.

Finally, SAFE SPACE argues in its petition that “it is not feasible for SAFE SPACE to establish separate 501(c)(4) or section 527 organizations to engage in these activities.” It explains why:

Establishing and operating section 501(c)(4) or section 527 organizations . . . would impose significant administrative burdens, such as by requiring the maintenance of separate bank accounts, additional reporting obligations like multiple tax returns, and safeguards to ensure that the activities of the [various] organizations remain separate. For a small organization like SAFE SPACE, these administrative burdens are insurmountable.²⁷

SAFE SPACE may be influenced in making this argument by the fact that in Citizens United, the Supreme Court described the creation of a political action committee as burdensome and ruled that the burdensomeness of that process was one of the factors that made the provision at issue a “ban on speech.”²⁸ Since that opinion came out, commentators have been speculating whether Citizens United is a signal that the Supreme Court might reverse its decision in Taxation With Representation that a charity’s ability to use an alternate means to communicate its political views renders the section 501(c)(3) political speech restrictions constitutional.²⁹

I didn’t go through the steps to actually create a section 501(c)(4) sister organization in this particular case, but I know that it just isn’t that big a deal. Creating the nonprofit corporation under state law takes a couple of hours. The Form 1024 takes very little time and is not required. The hardest part of the whole thing, honestly, is finding time for board meetings, even if conducted on Zoom. Creating a bank account to keep the section 501(c)(4) organization’s money separate from the section 501(c)(3)’s could take a few hours, but if an actual bank account is too burdensome, one could create a nonprofit corporate account with an online payment processor, like Venmo, and use that for all the section 501(c)(4) organization’s funds. That takes 10 minutes.

In the decades since the Supreme Court explained the necessity of an alternate means method for charities to use their constitutionally protected speech rights, views about the Johnson Amendment have become more and more polarized. Balancing the value of nonsubvention with organizations’ deep commitments to political speech is inherently complicated, but a technical solution that permits the proper balance is not only constitutionally mandated but better suited to the diverse roles our charitable sector serves. SAFE SPACE gets the balance wrong and has the potential to undermine the important work being done by the Johnson Amendment to prevent the charitable sector from being misused. The Nonprofit Education Project and its affiliated Nonprofit Education Fund do a better job . . . even though they don’t exist.