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2018 U. Ill. L. Rev. Online 1 (2018)

handle is hein.journals/uilro2018 and id is 1 raw text is: AMENDING THE JOHNSON AMENDMENT IN THE AGE OF CHEAP SPEECH Ellen P. Aprill* On November 16, 2017, the United States House of Representatives passed tax reform legislation. Its reform package included a provision amending the provision of the Internal Revenue Code (IRS), sometimes called the Johnson Amendment, that prohibits charities, including churches, from intervening in campaigns for elected office, at risk of loss of their exemption under section 501(c)(3).2 Under the House proposal, organizations exempt as charities under section 501 (c) (3) would have been permitted to engage in campaign intervention if the preparation and presentation of such content .. . is in the ordinary course of the organiza- tion's regular and customary activities in carrying out its exempt purpose and . .. results in the organization incurring not more than de minimis in- cremental expenses.3 A de minimis exception for incremental expenses (de minimis excep- tion) raises significant issues that demand attention in an era of what Pro- fessors Eugene Volokh and Richard Hasen have called cheap speech. * John E. Anderson Professor of Tax Law, Loyola Law School, Los Angeles. The author thanks Roger Colinvaux and Sanford Holo for comments on earlier drafts of this piece. 1. See Comm. on Ways and Means, HOUSE PASSED: Historic Legislation to Overhaul Nation's Tax Code for 1st Time in 31 Years, WAYSANDMEANS.HOUSE.GOV, https://waysandmeans.house. gov/house-passed-historic-legislation-overhaul-nations-tax-code-1 st-time-31 -years// (last visited Dec. 8, 2017). As originally proposed, the exception applied only to churches. See H.R. 1 § 5201, 115th Cong. (1st Sess. 2017), https://waysandmeansforms.house.gov/uploadedfiles/bill-text.pdf. The House provision was amended to apply to al section 501(c)(3) organizations but only for the period beginning after De- cember 31, 2018 and ending on December 31, 2023. See Amendment to the Amendment in the Nature of a Substitute to H.R. 1 Offered by Mr. Brady of Texas, WAYSANDMEANSFORMS.HOUSE.Gov, https://way- sandmeansforms.house.gov/uploadedfiles/chairman-amendment_2.pdf (last visited Dec. 8, 2017), https://www.finance.senate.gov/imo/media/doc/12.1.17%20TAX%20SUBSTITUTE.pdf 2. To qualify as exempt under section 501 (c)(3) of the Internal Revenue Code, an organization cannot participate in, or intervene in (including the publishing or distributing of statements), any polit- ical campaign on behalf of (or in opposition to) any candidate for public office. I.R.C. § 51 0(c)(3) (2012). 3. H.R. 1 § 5201, 115th Cong. (1st Sess. 2017). The legislation passed by the senate on December 2 did not include any change to the campaign intervention prohibition. See S. Res. H.R. 1, 115th Cong. (1st Sess. 2017). 1

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