Tax-exempt charities in the US are forbidden from supporting political parties or candidates because of a 1954 law called the “Johnson Amendment.” It’s been a frequent point of controversy over the years because it’s a government-imposed limit on free speech.

Defenders of the law have argued that tax-exemption is voluntary, and if charities want to engage in politics then they can just give up tax exemption. Moreover, tax-deductible political donations could open an economic can of worms. Critics of the law argue that limiting political speech is too precious of a price to demand, especially for religious nonprofits that have doubly enshrined interests (speech and religious activity) in the First Amendment.

Loyola law professor (and friend) Sam Brunson has recently written a paper proposing a moderated, middle way. It’s a novel approach and one worth considering.

This Article proposes an update and replacement for the current Johnson Amendment. The proposed 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 their 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. This new Johnson Amendment would accomplish the putative goals of the current Johnson Amendment without violating the First Amendment.

A New Johnson Amendment: Subsidy, Core Political Speech, and Tax-Exempt Organizations | Samuel D. Brunson