Speaking Up: The Challenges to Section 501(C)(3)'s Political Activities Prohibition in a Post-Citizens United World
March 25, 2014
Columbia Business Law Review, Forthcoming
Following the Supreme Court’s decision in Citizens United v. Federal Election Commission there is still one type of corporation that cannot engage in political speech: the nonprofit corporation. Section 501(c)(3) of the Internal Revenue Code prevents nonprofit corporations that hold tax-exempt status from participating in “any political campaign on behalf of (or in opposition to) any candidate for political office.” Recent events - for example the nonprofit political activity in the 2012 election, the 2013 IRS targeting scandal, and the notice of proposed rulemaking seeking comments to change the current IRS regulations - show a growing call to reform this provision, called the political activities prohibition.
This Note examines different constitutional challenges to the political activities prohibition, including First Amendment challenges and potential selective prosecution challenges stemming from the IRS’ alleged uneven enforcement of the prohibition. This Note concludes that the political activities prohibition should not be eliminated, and proposes agency regulations the IRS and the Treasury Department should pursue to ensure even enforcement of the prohibition.
Accepted Paper Series
Date posted: March 26, 2014
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