As you have probably heard by now, the Supreme Court's monumental and controversial decision in Citizens United says the government may not bar corporations – either for-profits or nonprofits – from spending money on independent, direct political advocacy. Last week's ruling essentially argues that, in the political realm anyway, corporate speech is no different from individual speech, and can't be treated any differently by the law.
This development does not directly address or impact the IRS' ban on electioneering activity by 501(c)(3) nonprofits, a category that includes churches and religious organizations. Those groups enjoy a central and important benefit that distinguishes them from the for-profits and 501(c)(4) nonprofits covered by the relevant law in the Citizens United: donations to 501(c)(3) organizations are tax-deductible. Contrary to popular belief, churches are not specifically banned by law from election advocacy; they do however risk the 501(c)(3) nonprofit status most all churches and religious organizations enjoy. Violating those relevant tax rules may result in a loss of that privilege, a reasonable trade that protects churches as well as taxpayers.
Still, there are many who would like to see this balance undone, with churches able to endorse and actively advocate for or against candidates while maintaining all the privileges of tax-exempt donations. And as unlikely as that reversal may seem – after all, a nonprofit makes a choice to enter this agreement, and is not banned by law from making a different choice with regard to contributions and advocacy – the Free Speech argument for electioneering by 501(c)(3)s surely got a measure of wind in its sails by the Citizens United ruling. After reading Justice Kennedy's majority opinion this weekend, I have no doubt that some pro-electioneering advocate will seize on it as a potential vehicle for overturning that prohibition as well.
See for yourself. I could have picked any number of sweeping Free Speech supports Kennedy offers, but am including just one brief excerpt below (my emphasis), as he explains the state of things now that the court has overturned Austin and portions of McConnell.
We return to the principle…that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. –p. 50
No government interest? That is a pretty stark statement, isn't it? Can the 501(c)(3) category survive it? Surely someone is going to want to find out, and soon.
