Christian Charity Violates the Johnson Amendendment … Or Does It?
Saturday, ProPublica published a story about Ziklag, a charity created to marshal the power of wealthy conservative Christian donors to effect dramatic political and cultural change in America. The article references “six nonpartisan lawyers and legal experts” who “[a]ll expressed concern that Ziklag was testing or violating the law” (including our own Lloyd Hitoshi Mayer, Phil Hackney, Roger Colinvaux, as well as nonprofit-law giant Marcus Owens).
The main concern appears to be campaign intervention in violation of IRC 501(c)(3) (what is nowadays called “the Johnson Amendment”). Violations of the Johnson Amendment are notoriously fact specific, and in my view, the article doesn’t describe a clear “smoking gun” violation. Much of the focus is on Ziklag’s “Steeplechase” project, which is an effort to get out the vote in swing states with the intention of turning out Trump-leaning voters to swing the election to Trump. As probably everyone reading this blog knows, according to IRS guidance, charities are permitted to conduct voter registration, voter education, and get-out-the-vote drives, so long as they are “carried out in a nonpartisan way.” But, as everyone probably also knows, the question of what it means for such drives to be nonpartisan is also quite complex. For example, my understanding is that the leaders of an organization can have an opinion about who is the better candidate, and while the IRS does not permit express targeting of sympathetic voters, there is room for play in the joints. Ironically, Republicans have recently ramped up their criticism of get-out-the-vote drives by charities, presumably under the belief that it is Democrats who use “nonpartisan” voter education for partisan ends more often or more effectively than Republicans.
Another “gray area” in Johnson Amendment law is the status of an internal “confidential” communication of a charity. Pro Publica obtained a video of an internal communication of Ziklag members that seemed to be intended to be kept confidential – the leader said, “You almost hate to put it out this clearly … because if somebody else gets ahold of this, they’ll freak out.” He then went on to say that Biden was “an empty suit with an agenda that’s written and managed by someone else.” The content of that message presumably constitutes campaign intervention since it disfavors a candidate in an upcoming election. But it is not at all clear that the medium of the message constitutes intervention: it was intended to be an internal communication between a relatively small number of members of the organization. It’s hard to imagine that the Johnson Amendment should be used to police every conversation between the leaders of charities and their members or staff. IRS guidance specifies that communications by organizational leaders at “official meetings” or “publications” are to be attributed to the organization and therefore must be free of electoral content, but there is no authority to help one decipher whether a confidential video constitutes an official meeting or publication.
In the end, I trust the opinions of the six experts that ProPublica cite in their report, since the ones named are the leading scholars in the field. And I strongly support ProPublica’s efforts to educate the public about campaign intervention by charities. But it is worth pointing out how elusive clear conclusions about campaign intervention often are, and how much is still left ambiguous in the law itself. While the experts cited are probably right that Ziklag is “across the line,” it may well be that Ziklag is conducting its affairs in conformance with the law, or at least with a genuine effort to conform. An intention to observe the law is entirely consistent with an intention to use 501(c)(3) status to advance the electoral interests of one’s preferred candidate. And, in my view, a diligent intention to observe the letter of law, even combined with a strong intention to distort the law’s spirit, is far better than contempt for the law. It is the difference between liberal society and an illiberal one. But maybe that’s just the tax lawyer in me talking.
–Benjamin Leff