Nonprofit Law Prof Blog

Soskis: Norms and Narratives That Shape US Charitable and Philanthropic Giving

Benjamin Soskis (Urban Institute) has posted Norms and Narratives That Shape US Charitable and Philanthropic Giving. Here is the first paragraph of the abstract:

The past few decades have brought about a profound shift in the norms and narratives surrounding smaller-scale charitable giving and larger-scale philanthropic giving. In this report, I analyze some of the most significant of those norms and narratives—that is, the rules governing accepted or valued charitable and philanthropic behavior and the replicable, archetypal stories that have developed to make sense of that behavior. I also examine how those norms and narratives have been shaped by and have shaped responses in the United States to the COVID-19 pandemic and to the mass protests after the killing of George Floyd. This analysis focuses on two clusters of giving norms and narratives: one surrounding the relationship between large-scale and small-scale giving, and one surrounding time-based considerations in giving.

Lloyd Mayer

Zolt: Cross-Border Philanthropy: A U.S. Perspective

Eric M. Zolt (UCLA) has posted Cross-Border Philanthropy: A U.S. Perspective. Here is the abstract:

Americans lead the world in supporting charitable activities (both in the U.S. and abroad). For foreign charitable activities, two key questions arise:

1. Should tax benefits support charitable activities outside the U.S.?
2. Should the U.S. tax system treat contributions to foreign charities differently from contributions to domestic charities?

U.S. tax law imposes remarkably low barriers to cross-border philanthropy. Contributions to U.S. charities are deductible even if all charitable activity takes place outside the U.S. Nominally, direct contributions to foreign charities are generally not deductible for income tax purposes. Practically, donors can easily work around this restriction (at relatively low costs and complexity) by transmuting non-deductible contributions to foreign charities into deductible contributions to domestic charities.

The hard question is normative: what should the law be? This chapter provides a framework for examining the desirability of the current regime and the different factors policy-makers may find useful in considering options to either reduce or increase barriers to cross-border philanthropy.

Lloyd Mayer

Articles on Conservation Easements, As DOJ and IRS Enforcement Efforts Continue

A number of commentators have recently posted articles addressing conservation easement deductions. Several of these articles were originally published in 2020 in a Tax Notes publication, but for readers who may not have access to Tax Notes publications they are now available on SSRN and so I am including them in this list:

• Jessica Jay, Down the Rabbit Hole with the IRS' Challenge to Perpetual Conservation Easements, Part Two, in the Environmental Law Reporter.

• Nancy Ortmeyer Kuhn, The Eleventh Circuit Court of Appeals: The Current Focus for Conservation Easements, in Bloomberg Tax.

• Douglas L. Longhofer and Katherine Jordan, Eroding Conservation, Preserving Abuse — A Flawed IRS Strategy, originally published in Tax Notes Federal.

• Nancy A. McLaughlin, Amendment Clauses in Easements: Ensuring Protection in Perpetuity, originally published in Tax Notes.

• Nancy A. McLaughlin and Ann Taylor Schwing, Conservation Easements and Development Rights: Law and Policy, originally published in Tax Notes.

In addition, the only exempt organizations issue that appears to have been raised by the National Taxpayer Advocate in her latest report to Congress focused on conservation easements. The report identified syndicated conservation easements as being at the center of the "most significant cases" involving a charitable contribution deduction issue, which was in turn identified as the ninth most litigated issue. The report notes that perpetuity, as opposed to valuation, has become the focus of recent conservation easement cases. See pages 216-219 of the report for more details.

Finally, Tax Notes reports that the DOJ has reached a settlement with a consultant who was one of the targets of the DOJ's investigation of syndicated conservation easements. Without admitting any wrongdoing, the consultant agreed to be permanently enjoined from promoting or arranging a qualified conservation easement contribution in the future (and to pay an amount that was not specific in the court filing).

UPDATE: Tax Notes reports that taxpayers involved in syndicated conservation easement deals have now filed a class action lawsuit against promoters of those deals.

Lloyd Mayer

DAF Debate Heats Up, New Data Emerges

Recent weeks have seen a flurry of pieces relating to changing the legal rules for donor advised funds or DAFs. Notable contributions include:

• Craig Kennedy and William Schambra published Conservatives Should Applaud — Not Fight — Efforts to Change Philanthropic Giving Rules in The Chronicle of Philanthropy, criticizing opposition to the Initiative to Accelerate Charitable Giving's proposed reforms.

• Dan Petegorsky published DAF Numbers Obscure Who’s Giving and How Much in InsidePhilanthropy, also criticizing opposition to the proposed reforms.

• Edward Zelinsky (Cardozo) published A Response to the Initiative to Accelerate Charitable Giving in Tax Notes, "agreeing with much (but not all) of its perspective and arguing that the rules applied to private foundations should also govern donor-advised funds."

At the same time, data about DAF contributions and donations continues to emerge (some from sources with a stake in the reform debate), including:

• AEI and The Philanthropy Roundtable released a new paper titled Appreciation in Donor-Advised Funds: An Analysis of Major Sponsors, describing how DAFs "have become the fastest-growing vehicle for charitable giving in recent years."

• The Community Foundation Public Awareness Initiative reported that For Every Dollar Contributed to Community Foundation DAFs in 2019, Donors Granted $1.08 in 2020, with the $6.7 billion donated by community foundation DAFs to nonprofits in 2020 representing an increase of 41 percent over 2019 donations.

• The National Philanthropic Trust published its 14th annual Donor-Advised Fund Report, reporting continued rapid growth of contributions to DAFs and donations from DAFs to charities through 2019.

• The Nonprofit Quarterly published COVID-19 and Donor-Advised Funds in 2020: What Do the Numbers Tell Us?, reporting data regarding disbursements by DAFs in 2019 and 2020.

• The Nonprofit Times reported that the largest DAF sponsor organizations reported significant increases in distributions from DAFs to charities in 2020, including a 24% increase at Fidelity Charitable, a 171% increase at the National Philanthropic Trust, and a 35% increase at Schwab Charitable.

Despite this debate and new information, it is unclear at this point whether there is any interest in Congress for changing the rules for DAFs. And the IRS is still considering comments it received in response to Notice 2017-73 relating to various issues involving DAFs.

Lloyd Mayer

Designing An Effective & More Universal Charitable Deduction

A Tax Policy Center study released on March 17, 2021 calls for a more universal  charitable deduction that would incentivize incentive a much larger share of the population.   Due to the effects of the Tax Cuts and Jobs Act of 2017 (TCJA) a huge drop in households that claim an itemized deduction for charitable contributions--from 26% to 9%--occurred in 2019.  As a consequence, "the TCJA reduced the estimated average federal income tax subsidy for all dollars of giving by 30 percent, from about 20 cents a dollar to 14 cents a dollar. Put another way, the government took away about 6cents of subsidy on average across all charitable contributions."  Although Congress devoted about $1.5 billion in the CARES Act to institute a one-year charitable deduction of $300, thus targeting the 90%v of taxpayers who claim the standard deduction, most donors already contribute more than that amount, according to the study, thus no extra incentive is given to make additional gifts beyond that amount.  

The study makes a number of relevant points:

• [The] debate often is stated in terms of government costs and taxpayer benefits. However, there is third party to these transactions: charitable recipients.  When a tax reform increases charitable contributions by the same amount as the government revenue loss, charitable beneficiaries are the net winners.
• A more universal charitable deduction can be designed that limits gains for higher-income taxpayers while still encouraging giving at other income levels. . . . [U]niversal deductions without floors provide substantial benefits to the highest-income taxpayers who already itemize, even when they give no more (and sometimes even when they give less) in response.
• We estimate that a universal deduction with a floor of 1.9 percent of AGI would be approximately revenue neutral relative to 2019 law and would raise charitable giving by about $2.5 billion a year. If revenue neutrality had been sought under the pre-TCJA law, a revenue-neutral floor would have been a smaller percentage of AGI than it would be today.

The study also proposes additional options in creating a universal deduction:

• [T]axpayers could be given the option of making charitable contributions up to the date of filing their income tax returns, or April 15, whichever comes first. Congress has offered this option to those making deposits to individual retirement accounts, and the House of Representatives passed this type of provision in the America Gives More Act of 2014. This timing option makes almost no difference in terms of incentive, but there is strong evidence that the provision would prove an effective marketing tool.
• Second, to avoid the threat of widespread tax cheating, Congress should consider adopting a provision for electronic reporting of charitable contributions to the IRS. Tax gap studies through the years have consistently demonstrated that third-party reporting significantly raises voluntary compliance. For instance, a significant increase in compliance for
  interest and dividends occurred once they became subject to an information reporting system.

Ultimately, the study illustrates how money spent on a universal charitable deduction can significantly increase the goods and services provided to charitable beneficiaries in relation to forgone revenue if proper attention is focused on the efficiency and fairness of each dollar of subsidy.

Nicholas Mirkay, Professor of Law, University of Hawaii

 

Eguzo: Governance and Accountability

Louis Eguzo (Ph.D. candidate at the University of Maryland) has posted Governance and Accountability: A Systematic Review to Examine Its Impact on Social Mission in Nonprofit Organizations. Here is the abstract:

This qualitative review examines the impact of governance and accountability on social missions in nonprofit organizations (NPOs). The purpose of this research is to conduct a systematic review of the literature to identify the impact of governance and accountability on social missions. The research explored 25 extant works of literature leveraging stakeholder theory to identify the impact of governance and accountability. The author suggests that this research may contribute to the body of knowledge related to governance, accountability, and conflict of interest in NPOs. The implication of this review will inform recommendations for NPOs on how to measure outcomes, be accountable, and practice governance that is devoid of crisis. The articles are relatively recent and appeared between 2000-2020.

Lloyd Mayer

McLaughlin: Conservation Easements and the Proceeds Regulation

Nancy McLaughlin (University of Utah) has posted Conservation Easements and the Proceeds Regulation (forthcoming Real Property Trusts & Estate Law Journal). Here is the abstract:

This article provides an in-depth look at Treasury Regulation § 1.170A-14(g)(6)(ii), known as the proceeds regulation. The proceeds regulation is intended to protect the public investment in conservation if a perpetual conservation easement that was the subject of a charitable deduction under Internal Revenue Code § 170(h) is later extinguished. A proper understanding of the proceeds regulation is critical because the public investment in deductible easements is significant—billions of dollars are being invested in such easements annually—and the regulation has recently been subject to challenges regarding its interpretation and validity. This article examines the history and operation of the proceeds regulation as well as possible alternatives. It explains that the proceeds regulation provides a simple and easy-to-implement rule that avoids a host of future valuation difficulties. It demonstrates that the proceeds regulation is neither irrational nor inherently unfair to donors or subsequent property owners, and serves to temper the perverse incentive that property owners may have to seek to extinguish easements. This article concludes that the proceeds regulation provides a reasonable solution to the difficult problem of ensuring that the conservation purpose of a contribution will be protected in perpetuity as required by § 170(h)(5)(A).

Lloyd Mayer

Polk: Collecting Earmarked Donations Through Mobile Payment Apps

Mary Scott Polk (J.D. candidate at the University of Mississippi) has posted What to Do With Leftovers: Collecting Earmarked Donations Through Mobile Payment Apps. Here is the abstract:

With the rise in mobile payment applications, charitable donations using these platforms are increasing; equally, the use of a conduit between a donor and a charity to solicit and collect donations for the charity's benefit is growing. If a charity is overfunded or the charitable purpose is no longer available, the conduit is caught holding a pool of designated donations without the ability to contact the donors for permission for a similar or alternate use. Using the Internal Revenue Code requirements, the authority and regulations are not apparent for a charitable contribution through a conduit, particularly not for a conduit’s use of a mobile payment application. Part I of this Comment provides an overview of the conduit situation and the complications that arise. Part II introduces the requirements of a charitable contribution and the services that mobile payment applications offer. Part III analyzes three donation methods: a contribution directly to a 501(c)(3) organization, a contribution to an individual, and a contribution to a 501(c)(3) organization through an individual. Part IV examines the potential solutions to the issue of overfunded charities and the motivations behind each. Finally, Part V offers a brief overview of the prevalence of the issue and the future of mobile payment applications. The interaction of the detailed requirements of the Internal Revenue Code for a charitable contribution and mobile payment applications’ privacy policies, without clear authority or direction on the specific conduit situation, has the potential to be problematic and challenging for the contributor, conduit, charitable organizations, and mobile payment applications.

Lloyd Mayer

Int'l Developments: Ten Cases That Shaped Charity Law in 2020, European Legal Philanthropy Environment, Global Philanthropy, and Tax Incentives for Cross-Border Giving

There have been several recent publications and reports of note from outside of the United States:

• Ten Cases that Shaped Charity and Nonprofit Law in 2020 And Ten Trends to Consider by Myles McGregor-Lowndes and Frances Hannah (both Queensland University of Technology): Based on a review of over 200 cases.

• Legal Environment for Philanthropy in Europe (2020) by Philanthropy Advocacy, a joint project of the Donors and Foundations Network in Europe (DAFNE) and the European Foundation Centre (EFC).

• Global Philanthropy: Does Institutional Context Matter for Charitable Giving? (Nonprofit and Voluntary Sector Quarterly) by Pamela Wiepking (Lilly Family School of Philanthropy), Femida Handy (University of Pennsylvania), Sohyun Park (Yonsei University), and others. Here is the abstract:

In this article, we examine whether and how the institutional context matters when understanding individuals’ giving to philanthropic organizations. We posit that both the individuals’ propensity to give and the amounts given are higher in countries with a stronger institutional context for philanthropy. We examine key factors of formal and informal institutional contexts for philanthropy at both the organizational and societal levels, including regulatory and legislative frameworks, professional standards, and social practices. Our results show that while aggregate levels of giving are higher in countries with stronger institutionalization, multilevel analyses of 118,788 individuals in 19 countries show limited support for the hypothesized relationships between institutional context and philanthropy. The findings suggest the need for better comparative data to understand the complex and dynamic influences of institutional contexts on charitable giving. This, in turn, would support the development of evidence-based practices and policies in the field of global philanthropy.

• Tax Incentives for Cross-Border Giving in an Era of Philanthropic Globalization: A Comparative Perspective (Canadian Journal of Comparative and Contemporary Law) by Natalie Silver (University of Sydney) and Renate Buijze (Erasmus University Rotterdam). Here is the abstract:

The 21st century has ushered in an era of philanthropic globalization marked by a significant rise in international charitable giving. At the same time, cross-border philanthropy has raised legitimate fiscal and regulatory concerns for government. To understand how donor countries have responded to this changed global philanthropic landscape, we use comparative tax methodology to develop a spectrum of approaches to the tax treatment of cross-border giving and apply tax policy criteria to critically evaluate the divergent approaches of Australia and the Netherlands, located at opposing ends of the spectrum. Findings from the comparative analysis reveal that in the current global environment for philanthropy there is a strong case to be made for allowing tax deductible donations to cross borders.

Lloyd Mayer

The changing face of policing nonprofits

An article written by Joshua Rosenberg of Law360 last month provides interesting insight for persons not intimately familiar with the oftentimes intricate subject area of tax-exempt organization regulation. Where once the IRS led the way in prosecuting potential tax infractions by nonprofit organizations, it now seems that state governments have stepped to the fore in that arena. As illustration, Rosenberg points to events such as the recent victory by New York’s attorney general in bringing a case against the National Rifle Association which made headlines nationwide last year. Developments such as this, says the article author, “have set the tone at the state level for policing charities, even though they’re unable to directly adjudicate the tax-exempt status of those organizations.”

Balanced against this upswing in the vigilance of state governments is a certain amount of apathy by the Internal Revenue Service in policing nonprofit organizations. This is likely due in no small part to dramatic funding cuts in 2013 when the Agency faced criticism (and indeed was ultimately found liable in the matter) for subjecting to strict scrutiny a number of conservative groups applying for charitable organization status 

For Rosenberg’s succinct and informative discussion of the topic including what this means for nonprofit tax infraction enforcement moving forward, see: https://www-law360-com.ezproxy.law.uky.edu/articles/1336984/states-not-irs-lead-in-policing-tax-exempt-organizations

David Brennen, University of Kentucky College of Law

M. Kopel & M. Marini: Mandatory Disclosure of Managerial Contracts in Nonprofit Organizations

Michael Kopel (University of Graz) and Marco A. Marini (Ph.D. student, University of Rome La Sapienza) have posted Mandatory Disclosure of Managerial Contracts in Nonprofit Organizations on SSRN. Here is the abstract:

Nonprofit organizations have been recently mandated to disclose the details of their executives’ compensation packages. Contract information is now accessible not only to current and prospective donors, but also to rival nonprofit organizations competing for donations in the fundraising market. Our aim is to investigate the impact of publicly available contract information on fundraising competition of nonprofit organizations. We argue that, although such provision makes contract information available to multiple stakeholders and increases the transparency of the nonprofit sector, it also induces nonprofits to use managerial incentive contracts strategically. In particular, we find that the observability of incentive contracts relaxes existing fun draising competition. This is beneficial in terms of nonprofits’ outputs, in particular when these organizations are trapped in a situation of excessive fundraising activities. However, we show that publicly available contract information distorts nonprofits’ choice of projects, thus potentially inducing socially inefficient project clustering.

Lloyd Mayer

I. Murray: Donor Advised Funds: What Can North America Learn From the Australian Approach?

Ian Murray (University of Western Australia) has published Donor Advised Funds: What Can North America Learn From the Australian Approach? in the Canadian Journal of Comparative and Contemporary Law. Here is the abstract:

Charity law is a public and private hybrid that seeks to balance donor intent with the achievement of public benefit. In supporting that balance, regulatory frameworks typically intrude less on donor intent when the recipient charity is a publicly controlled charity, rather than a private foundation. This approach is challenged by the rise of donor advised funds — public charity intermediaries that behave in many ways like privately controlled foundations. The rise has been particularly marked in the United States, but is also apparent in Canada and Australia. Pertinently, while Australia took many years to regulate private foundations, it shortly afterwards also introduced specific rules for public charitable foundations. This article therefore examines whether the United States and Canada can draw guidance from Australia’s experience in dealing with donor advised funds, especially in relation to delay in distributions and conflicts of interest.

Lloyd Mayer

N. Yoon: Understanding theoretical orientation and consequences of board interlock

Nara Yoon (Ph.D. student, Syracuse University) has published Understanding theoretical orientation and consequences of board interlock: Integration and future directions in Nonprofit Management & Leadership. Here is the abstract:

Board interlock represents a phenomenon where organizations are connected via overlapping board members and executives. Board interlock is an important area of research in governance study because of its potential to impact governance outcomes through the flow of information, resources, and status. Despite its potential significance, the role of board interlock in governance has not been explicitly discussed in the nonprofit board governance literature. I review and synthesize corporate and nonprofit board governance literature and link this literature to the study of board interlock. Then, I review the extant literature on the antecedents and consequences of board interlock. I conclude by identifying gaps in the literature and proposing directions for future research.

Lloyd Mayer

Sidel & Moore: The Law Affecting Civil Society in Asia

Mark Sidel (Wisconsin) and David Moore (International Center for Not-for-Profit Law) have posted The Law Affecting Civil Society in Asia:  Developments and Challenges for Nonprofit and Civil Society Organizations.  Here is the abstract:

Asia presents a paradox. Many of the more than forty countries in this vast region are home to
vibrant civil society sectors, engaged in everything from social services to advocacy to mutual
benefit activities and other pursuits that fall within the definitions of non-profit or charitable
activity. Yet in many countries of Asia, government regulatory controls on civil society are
restrictive or highly restrictive. Indeed, based on reports from countries as diverse as India,
China, Malaysia, Thailand and Vietnam, among many others, the legal operating environment is
becoming more restrictive, particularly for advocacy and other groups engaged in independent
civil society activity.

Nicholas Mirkay

 

E. Jensen: College Athletics and UBIT

Erik Jensen (Case Western Reserve) has published College Athletics and the Tax on Unrelated Business Income: Will 'Student Athletes' Still Be Students After the NCAA Changes Its Rules? in the Journal of Taxation of Investments.  Here is the abstract:

This article considers the effects of the California Fair Pay to Play Act—permitting a student athlete at any California college, beginning in 2023, to profit from income generated by the athlete’s “name, image, or likeness”—and the NCAA’s apparent acceptance of that principle on the liability of big-time athletic colleges for the unrelated business income tax (UBIT). College athletic teams historically have not been subject to UBIT because of the pretense that the participants are student athletes. Although the Fair Pay to Play Act and the NCAA’s response might not yet require discarding that pretense, the probable next step—direct compensation by the colleges, beyond scholarships, for participation in athletics—will make characterization of many athletes as “student athletes” untenable.

Nicholas Mirkay

C. Ahn, J. Houston & S. Kim: The Role of Corporate Board of Directors in Public Charity Lobbying

Changhyun Ahn, Joel F. Houston, and Sehoon Kim (all of the University of Florida) have posted Hidden in Plain Sight: The Role of Corporate Board of Directors in Public Charity Lobbying. Here is the abstract:

Using IRS tax filings by public charities linked to lobbying disclosure and corporate board data, we show that charities with corporate directors on their boards spend more money on lobbying for the connected firms' industry interests. Firms with greater exposure to political risk and lobbying activities more often seek board connections with charities, and the effects of connections are stronger when charities are connected to such firms or when charities are constrained on funding. We rule out assortative matching between directors and charities by controlling for firm-charity pair fixed effects, and address concerns of reverse causality using director turnovers as shocks to firm-charity connections. Consistent with quid-pro-quo relationships between firms and charities, we find that connected firms benefit from increased procurement contracts, and that connected charities receive more grants and donations. Our results highlight executive charitable engagement as a hidden avenue for corporate political activities.

Lloyd Mayer

J. Andreoni & R. Madoff: Calculating DAF Payout

James Andreoni (San Diego) and Ray Madoff (Boston College) have posted Calculating DAF Payout and What We Learn When We Do It Correctly. Here is the abstract:

The tremendous increase in the use of donor-advised funds for charitable donations has led policy-makers to ask if there is sufficient regulation and oversight of DAFs. In the absence of account level reporting, the debate has focused on the average payout rates of DAF sponsoring organizations, which have been reported by the DAF industry to exceed 20%. We show that the industry-preferred method for calculating payout rate overstates the correct payout by more than 50%. We then argue that the flow rate is uninformative unless grounded in the stock of assets held by the DAF sponsor. We suggest a different measure of flow we call the stockpiling rate. Finally, we show that transfers between DAFSs cause DAF grants to be overstated. Reporting transfers separately would allow a more precise estimate of flow.

Lloyd Mayer

A. Ball: Social Enterprise Lawyering

Alina Ball (Hastings) has published Social Enterprise Lawyering in the UMKC Law Review. Here is the abstract:

Social enterprises — businesses that achieve an articulated social mission using market-based strategies — have commanded rare attention in the last decade of corporate law scholarship. The recent enactment of for-profit, mission-driven entity legislation across the country has inspired a significant production of legal scholarship on corporate law innovations and governance considerations within the social enterprise sector. However, this influx of social enterprise legal scholarship has not, surprisingly, translated into a scholarly examination of the methods and strategies that corporate lawyers use when representing social enterprise clients. The proliferation and sustainability of social entrepreneurship will undoubtedly require the assistance of corporate and transactional lawyers who are equipped to address the nuances that social entrepreneurship presents. This Essay uniquely addresses this gap in social enterprise legal scholarship by advocating for “social enterprise lawyers” — corporate lawyers who also intuit how the social justice objectives of their social enterprise clients impact each legal matter. Moreover, social enterprise lawyers, as defined herein, are those corporate lawyers who conduct their lawyering in a manner that is consistent with the social change ethos of social entrepreneurship. As social entrepreneurship challenges fundamental assumptions of standard business practices and theories, social enterprise lawyering invites a re-imagining of conventional corporate lawyering. This Essay hypothesizes that for the nascent social enterprise sector to reach its full potential, there must also be a rise of social enterprise lawyers.

Lloyd Mayer

C. Chapman, M. Homsey, N. Gillespie: A Longitudinal & Multinational Examination of Public Trust in Nonprofits

Cassandra M. Chapman, Matthew J. Homsey, and Nicole Gillespie (all from the University of Queensland) have published No Global Crisis in Trust: A Longitudinal and Multinational Examination of Public Trust in Nonprofits in the Nonprofit and Voluntary Sector Quarterly. Here is the abstract:

Recent high-profile scandals suggest the potential for a crisis of trust in charities, which could have negative consequences for the nonprofit sector as a whole. Although widespread, this crisis narrative has not yet been subjected to empirical examination. To assess the extent to which public trust has changed over time, we examined trust in nongovernmental organizations within 31 countries over nine consecutive years using data from the Edelman Trust Barometer (N = 294,176). Multilevel analysis revealed that, after allowing for differences in absolute levels of trust and trends across countries, there was actually a small increase in global trust in the nonprofit sector. This increase was sharper among men, people aged below 40 years, and people with higher education, income, and media consumption. Overall, we find no evidence of a crisis of trust in nonprofits; scandals within individual organizations have not affected sectoral trust.

Lloyd Mayer

B. Leff: Fixing the Johnson Amendment Without Totally Destroying It

Benjamin M. Leff (American) has posted Fixing the Johnson Amendment Without Totally Destroying It. Here is the abstract:

The so-called Johnson Amendment is that portion of Section 501(c)(3) of the Internal Revenue Code that prohibits charities from "intervening" in electoral campaigns. Intervention has long been understood to include both contributing charitable funds to campaign coffers and communicating the charity's views about candidates' qualifications for office. The breadth of the Johnson Amendment potentially brings two important values into conflict: the government's interest in preventing tax-deductible contributions to be used for electoral purposes (called "non-subvention") and the speech rights or interests of charities.

For many years, the IRS has taken the position that the Johnson Amendment's prohibition on electoral communications includes the content of a religious leader's speech in an official religious service — a minister may not express support or opposition to a candidate from the pulpit. For at least as many years, some commentators and legislators have found this application of the Johnson Amendment especially problematic, since it implicates directly the freedom of houses of worship speech and religious exercise. These Johnson Amendment critics sought to provide some carve-out from the Johnson Amendment's general application to permit speech that includes ministers' pulpit speech without creating a massive loophole for the Johnson Amendment's general prohibition on campaign intervention. Other commentators have long argued that a limited carve-out for certain types of speech is not possible — that permitting any communication of the organization's views, even in pulpit speech, would provide a massive loophole in the overall treatment of campaign contributions and expenditures.

This Article reviews the leading proposals to fix the Johnson Amendment, and finds them all lacking. It then proposes four types of modifications that could be used to properly balance the speech interests of charities (especially churches) with the government's interest in a level playing field for campaign expenditures (non-subvention). These proposed modifications include:

(i) a non-incremental expenditure tax,

(ii) a reporting regime,

(iii) a disclosure regime, and

(iv) a governance regime.

The Article concludes that in order to properly balance non-subvention with speech interests of charities, a modification of the Johnson Amendment should include some version of all four types of interventions.

Lloyd Mayer