Monday, June 3, 2024
Reports from AMT/EITC Continued - All.The.Politics.
Or should I say, electioneering....
It's a unique and polarizing election year and we have a very active Supreme Court on a variety of First Amendment topics, so it's no suprise that we had two important presentations on the Johnson Amendment's prohibition on the politicial campaign intervention.
Ben Leff presented a project that he is working on with Sam Brunson are working on some public interest litigation in this space. As many of you may know, and as blogged about most recently here just a couple of days ago, SAFE SPACE v. Commissioner s a test case in the works challenging the Johnson Amendment, a project that Ilya Shapiro had a hand in. SAFE SPACE takes an all-or-nothing approach to the problems, clearly stating that the organization intends to do both electioneering and lobbying directly.
Ben and Sam intend to do something similar, in that they are filing with the intent of developing a test case. Ben discussed their project on the blog previously - see here. With the latest report that SAFE SPACE has been dismissed and returned to the administrative stage to develop additional facts, Ben and Sam's project may be able to catch up procedurally. Their project is very different from SAFE SPACE, however, as it will continued to utilized an affiliate organizations in their structure:
This Article describes the actions that Sam and I plan to take to create our own nonprofit organizations to endorse candidates in November 2024 using our
“alternate means” strategy that is explicitly distinguished from the marginal cost paradigm advanced by SAFE SPACE. While it is likely that noting will happen to our application prior to the 2024 election, we believe that engaging in Constitutional self-help using an alternate means strategy is urgent given the existence of SAFE SPACE and its case pending in Tax Court.
The paper walked its way throught the Constitutional analysis of Branch Ministries and Taxation Without Representation, and why their alternative structure works to address the First Amendment speech issues while also protecing the charitable sector from being overrun. Look for more updates on all of this - I'm sure Nonprofit Law Prof Blog will have the scoop, since both Ben and Sam are contributors here.
Phil Hackney, yet another of our bloggers and one who has been very active on this issue, presented his paper "The Political in Taxation." Phil says that the motiviation for the article was "the House Ways and Means recent suggestion that spending on voter registration and get out the vote efforts ought to be prohibited." It takes a wider view of how the tax code view political (again, in the electioneering sense) expenditures. The article is a wonderful take on the artifical and overlapping distinctions among electionerring, lobbying, issue advocacy, and straight up personal consumptions that we deal with regularly in the Code. As nonprofit types, we are used to these silos, but the are really artificial to the rest of the world. Phil's project is really important as we try to think through an issue that threatens the legitimacy of our sector.
Speaking of Phil... he takes over blogging this week so be sure to ask him about it!
Thoughtfully, eww
https://lawprofessors.typepad.com/nonprofit/2024/06/reports-from-amteitc-continued-allthepolitics.html