Applying the First Amendment to the Internal Revenue Code: Minnesota Voters Alliance and the Tax Law’s Regulation of Nonprofit Organizations’ Political Speech

On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax law taxing and precluding campaign intervention by tax-exempt organizations. In contrast to current law, Minnesota Voters Alliance requires that these provisions of the tax law be construed to comply with the First Amendment mandate that restrictions on speech be reasonable, objective, workable and determinate. After Minnesota Voters Alliance, the Johnson Amendment should be interpreted as only proscribing 501(c)(3) entities from expressly endorsing or opposing particular candidates, political parties or ballot questions or from engaging in the “functional equivalent” of such express advocacy. Under this test, tax-exempt entities would not be precluded from engaging in more general issue advocacy. The other provisions of the tax law preventing tax-exempt entities from participating in political campaigns and taxing such participation should be construed in the same say. These other features of the tax law should now be understood as precluding and taxing only express advocacy of or opposition to particular candidates, parties or ballot questions, or as prohibiting and taxing the “functional equivalent” of such explicit expression. For purposes of applying Minnesota Voters Alliance to the Johnson Amendment and these other provisions of the Internal Revenue Code, the applicable test should be the standard articulated by Chief Justice Roberts in FEC v. Wisconsin Right to Life, Inc. Under this standard, the functional equivalence of express advocacy would be defined restrictively as a statement “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The Internal Revenue Code need not be amended to fashion these statutory provisions to comply with Minnesota Voters Alliance, though modifying the language of the Code is one way that the Code’s current restrictions on the political speech of tax-exempt entities could be brought into compliance with the First Amendment. Alternatively, such compliance could be achieved administratively by revoking the portions of Rev. Rul. 2007-41 pertaining to issue advocacy under the Johnson Amendment and by amending the regulations under Section 501(c)(3) to clarify that forbidden lobbying occurs only when the a tax-exempt entity explicitly supports or calls for defeat of a particular legislative proposal pending before a public lawmaking body or before the electorate. Similarly, the IRS can modify Rev. Rul. 2004-06 to bring it into compliance with the First Amendment standard of determinacy announced in Minnesota Voters Alliance. Likewise, the Treasury can by regulation clarify that, for purposes of Internal Revenue Code Sections 527 and 501(c)(4), campaign intervention means explicit endorsement of or opposition to a candidate, not more generalized discussion of issues and legislation. The Treasury would thereby interpret those Code-based restrictions on political activity in a manner which satisfies the First Amendment signposts of reasonability and determinacy articulated in Minnesota Voters Alliance