Solving One Problem, Creating Another: Religious Preference in the Johnson Amendment's Latest Exception

Abstract

This Note examines the constitutional concerns raised by a proposed consent decree in recent litigation challenging the Johnson Amendment, which bans electoral intervention by 501(c)(3) organizations. It argues that the Amendment’s justification as a conditional government subsidy mischaracterizes case law and the tax code, and that the Amendment is not narrowly tailored to survive strict scrutiny. It then argues that the consent decree proposed by the IRS and plaintiff organizations, which creates a carve-out exempting only religiously motivated speech from a religious leader to their congregation, violates the Establishment Clause and the Free Speech Clause of the Constitution by privileging religious viewpoints. The decree also fails to address the Johnson Amendment’s defects: it preserves vagueness and risks distorting the political landscape by channeling electoral advocacy into entities that are already exempt from disclosure requirements applicable to other 501(c)(3)s, while continuing to silence secular nonprofits that must comply with such requirements. Finally, this Note proposes a neutral, activity-based legislative alternative that would protect free speech for all 501(c)(3) organizations while safeguarding against large-scale, tax-favored electoral campaigning through targeted taxation and disclosure requirements.