Charities and Lobbying: Institutional Rights in the Wake of Citizens United

Election Law Journal, Vol. 10, p. 407, 2011

Notre Dame Legal Studies Paper No. 10-39

35 Pages Posted: 6 Jan 2011 Last revised: 12 Apr 2012

Lloyd Hitoshi Mayer

Notre Dame Law School

Date Written: January 4, 2011

Abstract

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit on lobbying by charities, the decision does reinforce the constitutional requirement that the government allow charities to easily form a non-tax favored alternative for engaging in unlimited lobbying. Some post-Citizens United proposals for regulating speech-related activity may in fact run afoul of this requirement. More importantly, the intersection of Citizens United and this tax-based limit on charity speech may be a catalyst for renewed consideration of whether the unconstitutional conditions doctrine could be successfully refined in the subsidy context through an approach that considers the purpose of the subsidy and how important the speech-related limit is to the accomplishment of that purpose.

Keywords: campaign finance, charity, charitable, Citizens United v. FEC, election law, elections, first amendment, free speech, IRS, lobbying, nonprofit, political, taxation, tax-exempt organization

Suggested Citation

Mayer, Lloyd Hitoshi, Charities and Lobbying: Institutional Rights in the Wake of Citizens United (January 4, 2011). Election Law Journal, Vol. 10, p. 407, 2011; Notre Dame Legal Studies Paper No. 10-39. Available at SSRN: https://ssrn.com/abstract=1735010

Lloyd Hitoshi Mayer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-8057 (Phone)
574-631-4197 (Fax)

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