More Johnson Amendment Excitement: National Religious Broadcasters v. Werfel

It’s exciting times for those of us (like me!) who follow Johnson Amendment developments. The SAFE SPACE litigation is temporarily dismissed in Tax Court, but I have been assured that it’s only so the parties can develop the administrative record with the IRS, and it will be back in court as soon as that happens. Meanwhile, as was pointed out by my co-blogger Darryll Jones last week, the National Religious Broadcasters and others (“NRB”) filed a complaint in Eastern District of Texas, arguing that even though no adverse action had been taken against any of them, the existence of the Johnson Amendment unconstitutionally chills their speech and religious expression. The lawsuit will almost certainly be dismissed, but the complaint is interesting, nonetheless.

First, like SAFE SPACE, NRB tries to make a First Amendment argument by ignoring the “alternate means” doctrine introduced by the Supreme Court in 1983 in Taxation With Representation v. Regan and applied to the Johnson Amendment by the DC Circuit in Branch Ministries v. Rossotti. The Complaint doesn’t even mention these leading cases. It’s hard for me to imagine that this approach will get very far, but the Easter District of Texas may see things differently from me. Stranger things have happened.

But NRB goes farther than that by making two distinct arguments about unequal treatment by the IRS, claiming that the IRS is singling out conservative churches for discriminatory application of the Johnson Amendment. If that were true, it would radically transform the legal arguments because, as NRB points out, it would turn the speech claim into a “viewpoint discrimination” case, the religious liberty claim would involve discrimination between particular religious doctrines, and there might be a viable equal protection claim. If the IRS were discriminating against conservative churches, I think we would all agree that they should be stopped.

So, it’s worth looking at NRB’s arguments about discrimination. First, they argue that the existence of a Revenue Ruling from 1972 that holds that the editorial board of student newspapers are allowed to endorse candidates means that “it is a denial of equal protection to interpret § 501(c)(3) to allow college newspapers to endorse candidates while prohibiting nonprofits like Plaintiffs from doing the same.” The 1972 Ruling is admirably concise, but it manages to squeeze into its two short pages the basis of its reasoning, which establishes why the opinions of college newspaper student editors are materially different from the kinds of organizational communications that NRB and its co-plaintiffs seek to make. It says that the editorial opinions “are acts and expressions of opinion by students … of the educational institution …. [not] the acts of the university[.]”.

Second, NRB argues that the IRS permits campaign activity in churches if that activity favors Democratic candidates while it prohibits campaign activity in churches if it favors conservative candidates. Again, the complaint lists several examples of campaign activity in churches that favors Democratic candidates, which “goes unhindered by the IRS.” The complaint also lists examples of 501(c)(3) news organizations (not student newspapers) that endorse candidates, while the IRS “allows this to proceed unhindered.” But when the complaint turns its attention to IRS action against conservative churches, it has much less to say. It states generically that “Plaintiffs are aware of instances of recent investigations and adverse actions against conservative religious organizations,” (¶ 94), but apparently those instances are so secret that they cannot be named in the complaint. It mentions an adverse action against an organization called “Christians Engaged” (¶ 93), but that action was reversed by the IRS. Most intriguingly, it describes IRS action against the Cornerstone Chapel of Leesburg Virginia, which resulted in “a tax penalty for violating the Johnson Amendment” that the Cornerstone Chapel paid. (¶ 92). That’s it. I couldn’t find anything on the internet about this tax penalty paid by Cornerstone Chapel, but I’m really not that good at googling, so maybe that’s on me. It’s a shame that Cornerstone Chapel didn’t think to call Michael Farris, the lead attorney for the NRB complaint, because Cornerstone Chapel would be an ideal plaintiff in this action. I think they’re practically in his backyard. If the IRS assessed an unconstitutionally discriminatory penalty against them, I would like to see their rights vindicated in court.  

Maybe I’m devoting too much space to a single complaint that appears destined to be dismissed in short order. But in a way it does a much better job of identifying the underlying problem with the Johnson Amendment than SAFE SPACE does: fear of discriminatory application. Anyone (not just Republicans) looking for seemingly egregious examples of political adversaries violating the Johnson Amendment can find them, and they will generally also find that such violations “go unhindered by the IRS.” In that atmosphere, mere rumors of enforcement against one’s political friends may be enough to warrant a suspicion of discrimination. Discriminatory application of the Johnson Amendment would indeed be a violation of the Constitution, of numerous laws, and of the core values of our nation. The fact that there appears to be no evidence beyond rumors should be enough to dismiss a lawsuit, but that doesn’t necessarily solve the problem.

There was a time when the IRS had a “political action compliance initiative,” which sought to enforce the Johnson Amendment in as transparent a way as possible while still respecting taxpayer privacy. Some mechanism like that could be used to enable the IRS to increase its enforcement of the Johnson Amendment in a way that counteracts fears of discriminatory application rather than letting them fester. It may be that we are past the point when government can use transparency mechanisms to build trust in the rule of law, and that these mechanisms are destined to fail. But I hope not.

–Benjamin Leff