Colorado Environmental Law Journal > Printed > Volume 35 > Issue 1 > Climate Change and Voter Outreach: The IRS’s Prohibition on Political Campaign Activity and Climate Nonprofits

Climate Change and Voter Outreach: The IRS’s Prohibition on Political Campaign Activity and Climate Nonprofits


Nonprofit organizations in the United States play an instrumental role in societal progress, serving individuals and families, speaking with and educating policymakers, and providing community services. 501(c)(3) nonprofit organizations must operate as nonpartisan actors due to prohibitions passed by Congress to qualify for tax exemption.[2] Even with this restriction, nonprofit organizations, specifically climate focused 501(c)(3) organizations, are in an advantageous position to engage voters and potential voters to strengthen the democratic process. Climate organizations—tax-exempt organizations with missions to stop and reverse the climate crisis through policy development, education, volunteerism, and other means—should be able to conduct nonpartisan voter registration and get-out-the-vote (“GOTV”) efforts in tandem with their missions to bolster voter turnout, build their volunteer and member bases, and inform potential voters of the dire impacts of the climate crisis and need for urgent action.

Unfortunately, due to a lack of clarity from the Internal Revenue Service (“IRS”), many climate nonprofits will not conduct climate focused voter engagement activities, fearing that the IRS will conclude that such activity qualifies as political campaign activity prohibited under Section 501(c)(3) of the Internal Revenue Code (“IRC”). While the IRS has been slow to respond to nonprofits’ potential political campaign activity, and thus violations of their tax-exempt status, there has been a growing call for enforcement and awareness of nonprofits’ requirements from the U.S. Congress, Presidents, and community members. On May 4, 2022, the Senate Finance Committee conducted a hearing on the laws and enforcement governing the political activities of tax-exempt organizations with both Democrats and Republicans criticizing the IRS’s lack of enforcement action against organizations that violate the prohibition against political campaign activity.[3] Further, the Inflation Reduction Act (“IRA”) provided a $45.6 billion increase in the IRS’s enforcement budget, which will increase its capabilities of investigating referrals of nonprofit misconduct.[4]

Part I of this Note will discuss the history and creation of the modern tax-exempt organization structure in the United States and the restrictions placed on nonprofit organizations by the IRS when engaging in political campaigns. Part II will discuss the lack of a bright line rule imposed by the IRS, the limited guidance available, and the facts and circumstances test utilized by the IRS in evaluating whether a 501(c)(3) organization has acted outside of its exempt status. Part III will apply and analyze the IRS’s guidance and interpretation of restrictions on political campaign intervention to climate focused voter engagement campaigns conducted by a 501(c)(3). Finally, Part IV will discuss potential options for improved clarity on the topic, including an organization’s ability to comply with the IRS’s test and the possibility for the IRS to issue interpretive guidance to nonprofit organizations clarifying the applicability of the prohibition on political campaign intervention.

I. Background

There are nearly thirty different types of organizations exempt from federal income tax under the IRC. Such organizations include public charities, private foundations, political organizations, hospitals, schools, churches, and social groups.[5] The largest of these groups, however, are those established under Section 501(c)(3) of the IRC, which states:

“Corporations . . . organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”[6]

Today, 501(c)(3) organizations represent the overwhelming majority of tax-exempt organizations and account for the majority of the tax-exempt sector’s financial activity.[7] In 2016, there were approximately 1.54 million nonprofits registered with the IRS, an increase of 4.5 percent since 2006.[8] Of those, 1.08 million have exempt status under Section 501(c)(3).[9] Additionally, the nonprofit sector contributed $1.04 trillion to the U.S. economy in 2016, or roughly 5.6 percent of the country’s gross domestic product.[10]

Section 501(c)(3) organizations are differentiated from other similar organizations, such as Section 501(c)(4) organizations, due to the nature of their disclosure requirements and restrictions on lobbying and campaign interventions. 501(c)(4) organizations, known as social welfare organizations and often confused with 501(c)(3) organizations, may engage in partisan election activities, so long as doing so is not the primary purpose of the organization.[11] Additionally, donations made to 501(c)(4) organizations are not tax-deductible for the contributor.[12] Organizations tend to prefer 501(c)(3) status over 501(c)(4) because donations made to a 501(c)(3) are tax-deductible for the donor.[13] This means that the 501(c)(3) organization is likely to receive more donations to fund its operations than a 501(c)(4) would. Many large and well-funded politically active organizations, like the Sierra Club or the Citizens Climate Lobby, will organize a sister organization—or an “action fund”—as a wholly separate entity from their 501(c)(3) organization so that they can more aggressively engage in lobbying and electoral work while maintaining their primary exempt work under the 501(c)(3).[14] This Note focuses specifically on 501(c)(3) organizations and the opportunity for climate focused 501(c)(3) organizations to engage in meaningful voter education and mobilization work.

A. Creation of the Modern 501(c)(3) Tax-Exempt Status

The origin of the tax-exempt sector is rooted in the formation of the United States. In 1831, Alexis de Tocqueville noted: “I have frequently admired the endless skill with which the inhabitants of the United States manage to set a common aim to the efforts of a great number of men and to persuade them to pursue it voluntarily.”[15]

It was not until the late 1800s, however, that the “spirit of volunteerism” that Tocqueville noted was codified into the U.S. tax code.[16] The Wilson-Gorman Tariff Act of 1894 was the earliest mention of tax exemption in law.[17] The Act established a two percent tax on corporate income but stated that “nothing herein contained shall apply to . . . corporations, companies, or associations organized and conducted solely for charitable, religious, or educational purposes.”[18] While the Wilson-Gorman Tariff Act was ultimately ruled unconstitutional by the Supreme Court, the language for tax exemption from the Act would appear in subsequent tax legislation.[19] The Revenue Act of 1909 included this tax exemption language while also establishing that the net profit of charitable organizations benefiting from tax exemption should not “inure[] [. . .] any private stockholder or individual.”[20] In other words, the Revenue Act of 1909 established that tax-exempt organizations should also be not-for-profit.[21] That same year, Congress passed the Sixteenth Amendment to the U.S. Constitution, which created a constitutional power for the federal government to collect income taxes.[22] Congress followed the passage of the Sixteenth Amendment by passing a series of tax laws that expanded the collection of income tax, while maintaining the tax exemption for charitable organizations, and created a tax deduction for charitable contributions by individuals and corporations, including the Internal Revenue Code of 1954 and the Omnibus Budget Reconciliation Act of 1986.[23]

B. Prohibition on Political Campaign Activity

The Internal Revenue Code of 1954 (the “1954 Code”) formed the modern tax code that is still largely in use today.[24] In addition to other significant updates, the 1954 Code created the tax-exempt structure used today by adding additional requirements to what types of organizations are eligible for tax exemption and adding prohibitions to those organizations’ activities.[25] Specifically, Section 501(c)(3) of the 1954 Code added the prohibition on engaging in political campaign activities.[26] During the floor debate in the Senate on the IRC, then-Senator Lyndon B. Johnson offered an amendment to restrict 501(c)(3) organizations from endorsing political candidates, which became known as the “Johnson Amendment.”[27] While introducing the amendment, Senator Johnson stated, “[t]his amendment seeks to extend the provisions of § 501 of the House bill, denying tax-exempt status to not only those people who influence legislation but also to those who intervene in any political campaign on behalf of any candidate.”[28] Because the amendment was proposed during floor debates, it was added to the IRC “without the benefit of hearings, testimony, or comment from affected organizations.”[29] As a result, there is no legislative history or other documentation associated with the addition to provide further guidance on why it was added or what Congress hoped it would achieve. It is widely believed, however, that Senator Johnson added the prohibition on political campaign intervention to prevent his opponent in the 1954 Texas Senate campaign, Dudley Dougherty, from receiving funding from private foundations.[30]

Despite its passage without controversy, there has been increased attention to proposals to repeal the Johnson Amendment, thereby allowing 501(c)(3) organizations to engage in political campaigns. Some people, including Congressman Steve Scalise (R-LA) and former Senator James Lankford (R-OK), have advocated for the repeal of the Johnson Amendment to protect the First Amendment rights of nonprofit organizations under the U.S. Constitution.[31] The Supreme Court has yet to rule on this issue, but lower courts have held that the Johnson Amendment does not violate a tax-exempt organization’s First Amendment rights.[32] On May 4, 2017, former President Donald Trump attempted to eliminate the Johnson Amendment by issuing Executive Order 13798, essentially directing the U.S. Department of the Treasury to not enforce the Johnson Amendment or delay tax-exemption determinations based on conducting political activity (a promise from his 2016 campaign).[33] The Justice Department later conceded in court that the Executive Order did not change the requirements of the Johnson Amendment, one reason being that the Executive Order included the language “consistent with law.”[34] Additional polling has indicated that seventy-two percent of Americans are in favor of preserving the Johnson Amendment and keeping the prohibition on political campaign activity.[35] Congress and the IRS did not provide any further guidance or changes to section 501(c)(3) for several decades after the 1954 Code until the 1987 Omnibus Budget Reconciliation Act. In this Act, the Senate provided additional requirements and guidance on the prohibition of 501(c)(3) political activity, including providing express affirmation that “the bar on campaign intervention is absolute and that any amount of such conduct would render an organization wholly ineligible for exemption from federal income taxes and receipt of tax-deductible contributions.”[36] The 1987 Budget Reconciliation Act also added language to the IRC to include not only a prohibition against activity on behalf of a candidate, but also campaign activity in opposition to any candidate.[37] Further, the Act created new penalties for organizations that violate this prohibition.[38] In addition to revoking a violating organization’s tax exemption, the IRS could impose a ten percent tax on “political expenditures” made by a violating organization.[39] Moreover, Congress provided that the IRS could collect a 2.5 percent tax on the managers of the organization themselves if they have knowledge of political expenditures.[40] Should the organization or its managers refuse to make corrections, the IRS may impose a tax of 100 percent of the expenditure on the organization and a fifty percent tax on the expenditure to the manager.[41]

Support for tax-exempt organizations has been around since the early years of income tax law, but the qualifications and characteristics of modern 501(c)(3) organizations took time to develop. When tax-exempt status was created, political campaign activity was not a considered qualification. But over time, the lack of partisanship and intervention in elections has become a distinguishing characteristic of 501(c)(3) organizations. The addition of the Johnson Amendment to the IRC created more requirements for nonprofits, but it also created more confusion and gray areas for nonprofits to navigate while determining what activity is permissible when engaging in voter education and mobilization work.

II. No Bright-Line Rule: Interpretation and Enforcement of Section 501(c)(3)’s Prohibition on Campaign Activity

When a 501(c)(3) organization takes an action that violates the prohibition on political campaign activity, like endorsing a candidate or contributing money to a campaign, the IRS can choose to investigate and determine whether the activity constitutes political campaign activity and decide what an appropriate penalty for the action may be.[42] In 2004, the IRS introduced the Political Activity Compliance Initiative (“PACI”) to “expeditiously address instances of political campaign activity by a 501(c)(3) organization.”[43] PACI was subsequently used in 2006 and 2008, as well to investigate referred violations of political campaign activity by nonprofits.[44] During election years, PACI and procedures from PACI have been used as a standard feature for investigating noncompliant activity by nonprofits.[45] Additionally, the IRS regularly conducts audits of exempt organizations at random, but it will also conducts audits when they become aware of an organization that may be violating the campaign intervention prohibition through media monitoring or complaints from the public.[46] The IRS receives referrals of noncompliance from members of the public or other organizations who believe that an organization has violated the IRC.[47] Based on the referral, the IRS will investigate and, if it finds that an organization has acted outside of section 501(c)(3), it has the discretion to impose a penalty.[48] In some cases, the IRS will issue a written advisory, essentially a warning, detailing how the organization is out of compliance and informing the organization that it needs to remedy its actions.[49] The IRS can also choose to revoke an organization’s tax exemption, as the organization no longer qualifies as a 501(c)(3) or impose the excise tax penalties discussed above on the organization or the managers.[50]

The consequences of losing exemption can be fatal for a nonprofit. Losing tax-exempt status means that a nonprofit must begin to pay corporate income tax on its annual revenue.[51] Additionally, the organization may be subject to paying back taxes and penalties.[52] Donors to the organization will no longer be able to receive a tax deduction for their contributions, which has the potential to further decrease the organization’s funds by disincentivizing donors to continue to provide money.[53] Finally, nonprofits also risk losing any grant funding due to no longer having exempt status. All these impacts lead to significant decreases in the organization’s funds and can cause the organization to shut down or cease operations.[54]

A. Understanding the Political Campaign Activity Prohibition

A primary challenge that 501(c)(3) organizations face when determining what activity is permissible is navigating the gray area of the IRS’s definition and interpretation of political campaign activity. There is no explicit definition provided by the IRS and it has put out little guidance. Further, the limited court opinions on the subject do not typically address the IRS’s determination on the organization’s activity, but rather discuss other issues with the IRS’s enforcement, like Constitutional questions under the First Amendment.[55] Section 501(c)(3) prohibits tax-exempt organizations from participating in or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office.”[56] The IRC expressly identifies the “publishing or distribution of statements” that support or oppose a candidate as a prohibited activity but fails to provide a definition or definitive list of other activities that constitute political campaign activity as it relates to section 501(c)(3) organizations.[57]

While it is clear that certain activities are prohibited by the IRC, such as endorsing candidates and providing cash contributions, there is still uncertainty about less obvious or explicitly stated activities.[58] For example, in Revenue Ruling 2007-41, the IRS stated that:

“[s]ection 501(c)(3) organizations are permitted to conduct certain voter education activities (including the presentation of public forums and the publication of voter education guides) if they are carried out in a non-partisan manner. In addition, section 501(c)(3) organizations may encourage people to participate in the electoral process through voter registration and get-out-the-vote drives, conducted in a non-partisan manner.”[59]

When this same activity is conducted in a way that biases voters to favor or oppose a candidate, it is no longer permissible.[60] A Congressional Research Service report from February 21, 2006, concluded that the IRS had not offered any insights into what activities are banned for campaigns, either through tax law or regulations.[61] “As a result, 501(c)(3) organizations must draw on a hodgepodge of resources in order to piece together a best guess of how the IRS might view their advocacy or voter education and mobilization activities.”[62] To further muddy the water, section 6103 of the IRC prohibits the IRS from disclosing information about its investigations so the analysis and interpretations of case-specific facts remain unknown.[63] Some IRS officials have indicated that existing guidance does not provide clear information as to what constitutes political campaign intervention.[64] Particularly, when activity occurs close to an election, it is more challenging to separate the circumstances of the action from the election itself.[65] Existing authority does not provide clear guidance as to what activity is permitted under the statute, leaving section 501(c)(3) organizations to make a best guess as to whether they are operating within their exempt status.

1. Case Law and Technical Advice Memorandum

The limited case law on this issue also presents little interpretation or guidance for organizations seeking to conduct voting-related activity. In Branch Ministries, Inc. v. Rossotti, one of the few opinions addressing a nonprofit losing its exempt status over prohibited political campaign activity, the D.C. Circuit Court did not address the analysis used in the IRS’s investigation or whether its determination was accurate.[66] Rather, the Court provided significant deference to the IRS in determining what activity is considered prohibited political campaign activity.[67] In this case, the IRS had revoked the exempt statutes of Branch Ministries, a church exempt under section 501(c)(3), after finding it had published a newspaper advertisement criticizing Bill Clinton just four days before the presidential election.[68] Among other problematic content, the ad stated that “Bill Clinton is promoting policies that are in rebellion to God’s law” and “How can we vote for Bill Clinton?”[69] Further, the advertisement was paid for using tax-deductible donations.[70] Soon after the publication by Branch Ministries, the IRS initiated an investigation and revoked the exempt status of the church.[71] Rather than discussing whether the IRS had made a correct determination on the church’s activity, the Court looked at whether the IRS had the proper authority to make such a decision and whether the prohibition itself was constitutional.[72]

Other cases provide some guidance towards specific activities for organizations, although these were also limited. In Association of the Bar of the City of New York v. Commissioner, the Second Circuit held that rating candidates against each other is a prohibited activity for a 501(c)(3) organization.[73] In that case, the IRS had denied the Association of the Bar of the City of New York’s tax-exempt status because part of its work was ranking judicial candidates as “approved” or “not approved.”[74] Here, the Second Circuit also noted that candidates for public office do not need to be running for a partisan position to be covered by the prohibition.[75] None of the relevant case law provides a robust or comprehensive definition of prohibited activity, nor requires the IRS to provide further guidance on how it analyzed the facts in each of these cases. It is important to note that a lack of court cases regarding nonprofits losing their tax-exempt status due to political campaign activity does not mean that it was not occurring, just that they went uncontested in court.[76]

In addition to case law, the IRS issues Technical Advice Memorandum (“TAM”)—guidance from the Office of the General Counsel in response to a technical or procedural question during a proceeding—to provide further direction on how it applies to the IRC. On May 20, 1998, the IRS issued Technical Advice Memorandum 1999-07-021 (“TAM 1999-07-021”), stating that “to violate the political campaign prohibition, an advocacy communication ‘should contain some relatively clear directive that enables the recipient to know the organization’s position on a specific candidate or slate of candidates.’”[77] TAM 1999-07-021 concludes that the communication of “I’m Fed Up With Congress,” made by a nonprofit just a few days before a Congressional election, did not clearly indicate support for a specific candidate.[78] Further, there was no indication of the letter being sent only to specific states or districts, which would have indicated more targeted messaging.[79] The Office of the General Counsel provided guidance that this situation did not constitute prohibited activity.[80]

2. Interpretive Guidance: IRS Revenue Rulings

In addition to the case law and TAMs, the IRS periodically issues revenue rulings, the IRS’s interpretive guidance on how it reads and understands the IRC.[81] The IRS has issued revenue rulings to address both voter education and mobilization efforts in addition to issue advocacy in the context of 501(c)(3) exemption. The interpretive guidance is intended to be a guide for nonprofits seeking to conduct similar work and create a roadmap for how the IRS applies the IRC to specific issues and situations.[82] Through revenue rulings, the IRS has stated that a 501(c)(3) organization may engage in nonpartisan educational voter engagement activities like GOTV efforts and voter registration without engaging in political campaign activity.[83] For example, it is permissible for a 501(c)(3) organization to set up a voter registration booth with signs and banners containing the organization’s name, so long as the staff and any signage or materials at the booth do not indicate support for a candidate or political party.[84] Candidate forums, questionnaires, and debates are also permissible, so long as all candidates are invited to attend or provide information, and the questions asked do not indicate support or opposition for a candidate.[85]

In 2007, the IRS issued Revenue Ruling 2007-41, providing the first new guidance in more than twenty years regarding how the IRS interprets prohibitions under the Johnson Amendment.[86] According to Rev. Rule 2007-41, 501(c)(3) organizations are clearly prohibited from express advocacy in support of or in opposition to a candidate, which includes providing endorsements or cash contributions to a candidate.[87] When engaging in voter outreach and education work, 501(c)(3) organizations must also ensure that all of its communication, from employees or volunteers, written or printed, does not indicate support or opposition for a candidate.[88] Rev. Rul. 2007-41 also explains that organizational leaders may take positions and speak on “politically-charged issues, like abortion, sexuality, public schooling, and religious freedom.”[89] Each of these activities is not necessarily permissible per se because the IRS will still evaluate an otherwise permissible activity in the context of all facts and circumstances in which it was conducted.[90] Further, the IRS states that “the interaction among the activities may affect the determination of whether or not the organization is engaged in political campaign intervention.”[91]

Through these revenue rulings, the IRS has presented four voter education activity situations that illustrate whether a 501(c)(3) organization is engaging in political campaign intervention. In Situation Four of Rev. Rul. 78-248 (“Situation Four”) the IRS provided the following example:

“Organization D has been recognized as exempt under section 501(c)(3) of the Code. It is primarily concerned with land conservation matters. The organization publishes a voters guide for its members and others concerned with land conservation issues. The guide is intended as a compilation of incumbents’ voting records in selected land conservation issues of importance to the organization and is factual in nature. It contains no express statements in support of or in opposition to any candidate. The guide is widely distributed among the electorate during an election campaign.”[92]

In this situation, the IRS held that “[b]y concentrating on a narrow range of issues in the voters guide and widely distributing [the publication] among the electorate during an election campaign, [the organization] is participating in a [prohibited political activity].”[93] They noted that while the organization’s guide may have provided the voting public with useful information, its emphasis on particular incumbents’ voting records on “selected land conservation issues” indicates that its purpose is not nonpartisan voter education.[94] By focusing on a narrow range of issues in the widely-distributed voter guide, the IRS held that the organization had engaged in prohibited activity that disqualified it from exemption under Section 501(c)(3).[95]

Conversely, in Rev. Rule. 80-282, the IRS provided a situation (“Situation Three”) in which a 501(c)(3) organization published a newsletter containing statements of the organization’s position on various issues and a summary of members of Congress’ voting records on those issues.[96] The IRS held that the newsletter was not prohibited political activity because the voting records were shown in a way that illustrated whether the member voted in accordance with the organization’s position on the issue.[97] The IRS emphasized that the newsletter was distributed to a limited, nontargeted audience of the organization’s members and that it was not related to the timing of elections.[98] Unlike in Situation Four above, the organization in Situation Three did not focus on specific selected issues relevant to the organization, but rather highlighted whether an incumbent voted in line with the organization’s position on various issues. From these two situations outlined above, an organization conducting voter outreach activities should not focus on specific and selected issues, but rather focus on highlighting issues in line with their organization’s mission broadly. In the case of a climate organization, this would mean discussing climate change and its impacts more generally, rather than focusing on specific bills or policy solutions that have divided politicians.

These two situations outlined above indicate that an organization conducting voter outreach activities should not focus on specific and selected issues, but rather focus on highlighting issues in line with their organization’s mission broadly. In the case of a climate organization, this would mean discussing climate change and its impacts more generally, rather than focusing on specific bills or policy solutions that have divided politicians.

To further provide guidance, Rev. Rul. 2007-41 “uses twenty-one [scenarios] to illustrate permissible and impermissible activities of voter education, registration, and participation efforts, [including activities involving] candidate appearances, issue advocacy, renting facilities, … [and sharing] mailing lists”.[99]

Of the scenarios Rev. Rul. 2007-41 discusses, two are particularly relevant: Situation One and Situation Two. Situation One involves a 501(c)(3) organization that promotes community involvement.[100] The organization in Situation One set up a booth at a state fair to register citizens to vote and had signs and banners with the organization’s name, the date of the next upcoming statewide election, and a notice of the opportunity to register to vote.[101] The organization, including its volunteers staffing the booth and the materials available, did not refer to any candidate or political party, other than the official voter registration forms which allow registrants to select a party affiliation.[102] In this scenario, the IRS held that the organization had not engaged in political campaign intervention.[103]

In Situation Two, Organization C is a 501(c)(3) organization that educates the public on environmental issues.

“Candidate G is running for the state legislature and an important element of her platform is challenging the environmental policies of the incumbent. Shortly before the election, C sets up a telephone bank to call registered voters in the district in which Candidate G is seeking election. In the phone conversations, C’s representative tells the voter about the importance of environmental issues and asks questions about the voter’s views on these issues. If the voter appears to agree with the incumbent’s position, C’s representative thanks the voter and ends the call. If the voter appears to agree with Candidate G’s position, C’s representative reminds the voter about the upcoming election, stresses the importance of voting in the election and offers to provide transportation to the polls.”[104]

The IRS in this case determined that Organization C had engaged in political campaign intervention when it conducted voter outreach in this way, mainly focusing its concern on the sorting of voters.[105]

While there is significant confusion and grey area over what the IRS considers to be political campaign activity and what activity is permissible, the revenue ruling scenarios provide nonprofit organizations with a set of facts, circumstances, and results that they can piece together to help determine what activity is likely permissible and what activity the IRS will likely find to be prohibited.

B. IRS Investigations: Facts and Circumstances Test

In investigating whether a 501(c)(3) organization’s communication qualifies as political campaign intervention, the IRS makes a determination dependent on all of the facts and circumstances of the case.[106] The IRS has explained that “IRS examiners apply the law to the facts and circumstances of each case and conduct a qualitative analysis using a set of specified factors[.]”[107] For example, while some voter education activities, such as distributing a non-partisan voter guide, may not constitute prohibited activities, a voter guide that itself shows a bias or preference in content to a particular candidate could indicate impermissible political activity.[108] In particular, IRS officials will consider whether the consequence of the organization’s activity has the potential to influence a voter’s opinion of a candidate or encourage them to support a particular candidate.[109]

As discussed in the above section, there is little clarity provided as to how the IRS or an individual investigating agent should interpret nonprofit’s activity when determining whether it is prohibited or not. Per Rev. Rul. 2007-41, when making a determination as to whether an organization’s conduct reaches the level of political campaign intervention, the IRS will specifically look at particular factors that are more persuasive than other facts or circumstances about the activity.[110] As part of this discretionary test, the IRS considers whether the statement: (1) identifies one or more candidates; (2) expresses approval or disapproval of candidates’ positions or actions; (3) is made close to the election; (4) refers to voting or the election; (5) is about an issue raised as one distinguishing candidates; (6) is part of an ongoing series of communication; and (7) whether the timing of the communication or identification of the candidate is related to a non-electoral event, such as a scheduled vote on legislation.[111] A communication is particularly at risk of being deemed a political campaign intervention if it makes reference to a candidate or voting in a specific upcoming election.[112] Given the discretionary nature of this test, a nonprofit does not need to have conducted each of these activities to be found to have conducted political campaign intervention. Further, the presence of one or more of these activities does not necessarily mean that the IRS will find that an organization has conducted political campaign activity.

C. Impacts and Real-World Application

Despite having the authority, the IRS has rarely taken enforcement action against a 501(c)(3) organization for conducting political campaign activity. In 2004, the IRS implemented PACI to investigate the extent of impermissible political activities 501(c)(3) organizations were conducting.[113] Of the 166 organizations referred to the IRS during the initial initiative, seventy-six were found to have conducted political campaign activity.[114] In a recent Freedom of Information Act request, ProPublica obtained information from the IRS stating that since 2001, they have investigated only sixteen churches (exempt under 501(c)(3)) for engaging in political campaign activity.[115] ProPublica found examples of twenty churches from 2020–2022 alone in which leaders directly endorsed and supported candidates in clear violation of this rule.[116] From 2010–2017, the IRS only initiated audits into 226 tax-exempt organizations specifically for conducting impermissible political activity, 212 (ninety-three percent) of which were 501(c)(3) organizations.[117] A majority of the investigations did not result in revocation or termination of the organization’s tax-exempt status, nor did the IRS impose an excise tax for an organization’s political campaign intervention.[118]

In 2013, a congressional investigation was conducted into the IRS due to reports that it was targeting audits and investigations based on keywords used in the registered name of 501(c)(3) organizations and applicants, specifically if they used the words “patriot” and “tea party.”[119] Congressional Republicans suggested that this was evidence that then-President Barack Obama was utilizing the IRS to target his political enemies during an election year.[120] It is worth noting that in 2017, the Treasury Department released a report showing that the IRS had in fact targeted both conservative and liberal organizations during this time period.[121] This included organizations with keywords in their names that included “occupy,” “progressive,” and “green energy.”[122] Regardless, the perceived targeting of conservative organizations by the IRS led to distrust in the IRS’s nonpartisan enforcement capabilities and raised questions of legitimacy. Since 2013, there has been a decrease in congressional funding for IRS enforcement activities.[123]

The 2013 investigation into the IRS was not the first time that questions of the IRS’s nonprofit enforcement legitimacy were raised. In 2004, the IRS initiated an audit of the National Association for the Advancement of Colored People (“NAACP”) after its chairman criticized the Bush Administration’s policies (but not President George Bush as a candidate).[124] In an audit notice, the IRS wrote, “[w]e have received information that during your 2004 convention in Philadelphia, your organization distributed statements in opposition of George W. Bush for the office of Presidency.”[125] The IRS claimed that the statements may have been a violation of the organization’s tax-exempt status.[126] The NAACP paid the IRS a ten percent tax penalty on its related political expenditures in question, about $17.65, but refused to cooperate with the IRS’s investigation, claiming that the IRS was politically motivated and illegitimate.[127] After a lengthy legal battle involving criticism of the IRS from Democrats in Congress, the IRS dropped its case against the NAACP.[128]

On the other hand, the IRS has also received criticism for its lack of enforcement related to noncompliance by nonprofit organizations. From 2010 to 2015, the IRS reported that it had commenced audits for twenty-six organizations specifically for political activity.[129] Further, the Center for Public Integrity found in 2015 that Congress had “systematically weakened the IRS’ exempt organizations division in recent years, leading to the IRS all but quitting its regulation of politically active nonprofit groups.”[130]

In 2022, the Texas Tribune and ProPublica published an investigation into several churches, exempt under Section 501(c)(3), that had violated the prohibition against political campaign intervention.[131] In their findings, they highlighted eighteen churches that had violated the Johnson Amendment, some going as far as characterizing certain candidates as “demonic” and encouraging their congregation to vote for a particular candidate or party.[132] The report noted the lack of IRS enforcement against churches conducting this type of activity stating, “[t]he number of apparent violations found by ProPublica and the Tribune, and confirmed by three nonprofit tax law experts, are greater than the total number of churches the federal agency has investigated for intervening in political campaigns over the past decade[.]”[133]

More recently, Congress has increased its attention on IRS enforcement against nonprofits and called for greater enforcement. The Senate Finance Committee held “Law and Enforcement Governing the Political Activities of Tax Exempt Entities” hearings in May 2022, which sparked concerns from both Republicans and Democrats of tax-exempt organizations engaging in politicking outside the bounds of their exempt status.[134] Democrats in the Senate primarily focused their concerns on a lack of transparency in disclosures by 501(c)(4) organizations, while Republicans highlighted that the “real problem” was the lack of accountability of 501(c)(3) organizations.[135]

The attention on the IRS’s enforcement capabilities increased in the latter part of 2022 with the passage of the IRA.[136] The IRA provided an additional $45.6 billion to the IRS for “tax enforcement activities such as hiring more enforcement agents, providing legal support, and investing in ‘investigative technology,’” and many have concluded that this money would be utilized to hire an additional 87,000 IRS agents, some of which would be tasked with investigating noncompliance by tax-exempt organizations.[137] On January 9, 2023, the House of Representatives voted to rescind the additional funding provided to the IRS through the IRA.[138] While the bill passed in the House of Representatives, it is unlikely to get a vote in the Senate.[139] During the vote, some Republicans expressed their intent to eliminate the IRS in its entirety.[140]

When analyzing a 501(c)(3) organization’s activities, the IRS uses a “facts and circumstances” test to determine if the activity in question ran afoul of the IRC’s prohibition on political campaign activity. The IRC itself does not clarify which activities are permissible and which facts hold more weight, nor is there comprehensive case law on the topic. In fact, even the IRS has found trouble in the application of the political campaign activity prohibition and has faced criticism from both parties for their enforcement actions. The IRS, however, has issued interpretive guidance and presented several situations that provide added guidance and clarification to organizations. When planning out activities, a nonprofit should use these examples and key factors to inform its decisions, as well as to help determine whether its plans will be permissible.

III. Analysis of a 501(c)(3) Climate and Civic Engagement Campaign

Many 501(c)(3) climate organizations today focus primarily on education and advocacy related to the climate crisis. These organizations are generally single-issue organizations, meaning that their mission is focused on a single issue: climate change. When such an organization runs a voter engagement campaign—such as working to get people to register to vote or to increase voter turnout—many will avoid pairing their primary work and mission on climate with voter education and mobilization due to the fear that the IRS will initiate an investigation into its activities and potentially strip the organization of its tax-exempt status. Often, organizations will use broad topics when discussing the importance of voting, like “protecting our future” or pairing climate in a list of important topics in the upcoming election. There are organizations, however, that have paired its organization’s mission with their voter engagement work by discussing the importance of voting and registering to vote to address climate change and take action, taking the risk that the IRS will not interpret this activity as prohibited.[141] Nonprofits will generally avoid using “coded phrases” in these campaigns like “be a climate voter” or “vote climate.”[142] These phrases could act as substitutes for partisan language and the IRS has discouraged their use to ensure that their voter engagement campaign work does not indicate support for any particular candidate or party, even if their campaign is targeted to the general population.[143]

Part A below will describe a typical voter engagement campaign conducted by a climate organization to help determine whether similar activity is permissible. Part B will apply IRS guidance to this campaign to determine how an investigation into such practices may conclude.

A. Example of a Voter Engagement Campaign

Keeping in mind the limited guidance the IRS has provided, nonprofits are still permitted to conduct voter registration and GOTV work without risking their tax exemption. In the case of an organization focused on climate change, a voter campaign would likely include work to register new voters and remind potential voters to turn out to vote. A campaign of this type would not indicate support for any particular party or candidate, nor would it target campaign efforts towards particular voters, such as only targeting voters likely to vote for Democrats or young voters in urban areas. The campaign would target the general population to educate them on the importance of voting generally.

For a climate nonprofit, there is an increased risk of IRS action when the nonprofit pairs its voter education and mobilization work with the nonprofit’s primary purpose as an exempt organization. A climate organization is likely to discuss issues related to climate change while also engaging in nonpartisan voter engagement work. This could include sharing the organization’s mission with community members, displaying the organization’s name and logo, or discussing facts and data related to climate change. This discussion on climate change would be squarely within the organization’s mission and typical activity that they conduct, regardless of whether there is an election or not. The issue for this campaign would be determining whether the IRS would view their activity discussing voting and climate as prohibited political campaign intervention or whether the IRS would permit it as nonpartisan voter engagement work.

B. Applying the IRS’s Guidance to a Climate Campaign

When determining whether the described activity is prohibited political campaign activity, the IRS will look at all the facts and circumstances surrounding the activity. First, the proposed campaign described in this section does not meet any of the obvious criteria from the IRS that would raise flags. The campaign described above would not name or reference a candidate or indicate support or opposition for a particular candidate or party. Further, it would not coordinate its work with any candidate, campaign, or party. Additionally, this campaign would also not be clearly prohibited under the guidance and examples provided by the IRS. Unlike the organization in Situation Two[144] where the organization provided disproportionate treatment of voters based on whether they agreed or disagreed with the organization’s view on a particular issue, this organization’s activity to register, turn out, and engage with a potential voter would not be biased by the voter’s likelihood to support a particular candidate or particular issue. In Situation Four[145] the IRS took issue with the fact that the land conservation organization distributed its materials during the time of an election, rather than being concerned with the fact that the organization was focused on a particular environmental issue and distributed material with such content. This is, again, the key issue in Situation Three,[146] where the IRS held that the publishing of voting records of members of Congress that do not relate to the timing of an election does not constitute political campaign activity. While the communication would be proximate to the election, a question of particular concern for the IRS, a climate nonprofit would already be regularly discussing climate in its communication regardless of the time of year or the upcoming election. As the organization’s primary purpose, communication related to climate would not be unusual and should not cause reasons to indicate impermissible political campaign activity.

Further, a typical campaign event for a climate nonprofit would be set up like that in Situation One.[147] A climate nonprofit would include the organization’s name, important dates of the next federal and statewide election, and a notice of the opportunity to register to vote. While the organization in Situation One is focused on multiple issues related to community involvement rather than a single issue, like climate, the IRS did not focus on the organization’s mission, but rather on its other activities around the event, indicating that the organization’s mission itself was not what they were generally concerned about. In Situation Four, however, where the organization focused on land conservation topics, the IRS explained that publishing a voter guide based on specific land conservation issues was too narrow and, therefore, prohibited.[148] A typical climate nonprofit campaign, however, would not be focused on only select issues, but rather climate change broadly, and the nonprofit’s activities would be more aligned with those of Situation One, which the IRS ruled to be permissible.[149]

It is likely that the most challenging step in this analysis for a climate nonprofit, though, is whether the organization’s communication on climate is an issue that distinguishes candidates for a given office. Revenue Ruling 2007-41 specifies that a key consideration in the IRS’s facts and circumstances analysis is whether the issue advocacy is one that distinguishes candidates.[150] To avoid issues in this analysis, organizations should be sure that they are not discussing specific initiatives that candidates have backed or made an important pillar of their campaign platform, but rather discussing the climate crisis more generally and focusing on education on the issue over pushing policy solutions.

Additionally, there is significant evidence to indicate bipartisan support for addressing climate change that would support a finding that this issue does not inherently distinguish candidates. While it is likely that a communication that addressed the Green New Deal, which has strong Democratic support, is often used as a litmus test for party loyalty, and has been championed by specific congressional Democrats like Senator Ed Markey and Representative Alexandria Ocasio-Cortez, would indicate support for a particular candidate, a campaign on climate more generally would be more challenging to pinpoint on a specific candidate and allow for more parties to participate in the conversation and decision of platforms.

Historically, climate change and environmental policies have gained support from both sides of the aisle, and there is a continued strong indication of bipartisan support for addressing climate change. Two of the most significant environmental policies to be passed by Congress, the Clean Water Act and the Clean Air Act, were supported by both parties.[151] In 1988, the Senate Energy Committee discussed global warming as a critical issue and both sides of the aisle took notice of this early political conversation on the issue.[152] Soon after, then-candidate George Bush Sr. and his Democratic opponent, Michael Dukakis, both promised an “aggressive approach” to the issue of global warming in their presidential campaigns.[153] President Bush Sr. went on to launch the United Nations Framework Convention on Climate Change, which would later lead to important global agreements, including the 2015 Paris Agreement.[154] In 1992, Senator Chuck Grassley (R-Iowa) added the renewable energy production tax credit to the 1992 Energy Policy Act, which has been “critical to the rapid expansion of the wind energy industry.”[155]

In 2008, President George W. Bush stated that “[m]any are concerned about the effect of climate change on our environment. Many are concerned about the effect of climate change policies on our economy. I share these concerns, and I believe they can be sensibly reconciled.”[156] In 2016, Representative Carlos Curbelo (R-Fla.) and Representative Ted Deutch (D-Fla.) started the bipartisan Climate Solutions Caucus in the House of Representatives.[157] The Caucus’s mission is described as “educating members on ‘economically-viable options to reduce climate risk and protect our nation’s economy, security, infrastructure, agriculture, water supply and public safety.’”[158]

Outside of federal politics, there is noticeably broad support for climate action and environmental policies across political ideologies. According to research conducted for the Yale Climate Opinion Maps, seventy-two percent of Americans believe global warming is happening while sixty-one percent believe Congress should do more to address global warming.[159] Additionally, fifty-five percent of Americans believe global warming should be a priority of the next Congress and President and fifty-seven percent believe their Governor should do more to address global warming.[160] For context, the Democratic presidential nominee in the 2020 election, Joe Biden, received 51.3 percent of the national vote, while the Republican candidate, Donald Trump, received 46.8 percent of the vote.[161] Together with the other provided data, it is clear that there is bipartisan support for climate policy and support from the American people for action to address climate.

The topic of climate change and the need for climate action itself, therefore, does not inherently distinguish one candidate from the other or one party from the other. Educating the public about climate change and doing so in the context of an election should be viewed as a natural furtherance of the organization’s exempt purpose under which it received an exemption, and not as prohibited campaign interference. This strong indication of bipartisanship tilts the IRS’s inquiry towards permissible activity as it should not indicate support for a particular candidate or platform.

It seems reasonable to assume that a campaign conducted like the one described above would not raise a concern with the IRS. When compared to the scenarios and cases that provide guidance on IRS interpretations of the prohibition, there is no indication that nonpartisan voter outreach paired with communication about climate change implicates a particular candidate or political party, and without otherwise coordinating with a campaign or making statements that are clearly impermissible, a nonprofit should survive an inquiry into this work.

IV. Recommended Options

The guidance surrounding political campaign activity is murky and leaves nonprofits questioning if their actions are permissible or if they will risk revocation of their tax-exempt status. For climate nonprofits to engage in the critical and valuable work of voter engagement, several potential steps may be taken.

A. Action by the IRS

The IRS should take action to clear up the ambiguities of the IRC itself by issuing a revenue ruling about climate organizations’ voter engagement activities. This would provide the greatest stability and clarity for a nonprofit organization. By issuing interpretive guidance in the form of a revenue ruling, the IRS can detail how it would interpret this type of activity by a climate or environmental nonprofit organization.[162] A revenue ruling on this issue would provide organizations with guidance from the agency directly and help clear up any confusion among nonprofit organizations, donors, and IRS agents. The IRS has historically issued revenue rulings on issues where the IRC is ambiguous, and taxpayers would benefit from further guidance and understanding. Further, revenue rulings are binding conclusions of how the IRS will apply the law to a particular set of facts. In this case, a revenue ruling would provide environmental nonprofits with guidance they could firmly rely on when making decisions about their activities.[163]

Alternatively, the IRS could issue an opinion on this type of circumstance through a private letter ruling (“PLR”). Like revenue rulings, a PLR is a “written statement issued to a taxpayer that interprets and applies tax laws to the taxpayer’s represented set of facts.”[164] The IRS may receive a request for a PLR from an organization and will examine all the facts and circumstances of the proposed activities.[165] It will then issue its response on how it would rule on that particular issue to the requesting organization.[166] The written decision is binding on the IRS, but it cannot be relied on as precedent for other cases because of the nature of the facts and circumstances test.[167] The IRS does, however, tend to follow the findings of previous PLRs for largely identical cases.[168] Should multiple climate nonprofits intend to run similar or identical voter engagement campaigns, the organization should be able to rely on another’s PLR outcome when determining its own activities’ compliance. Any climate nonprofit seeking to engage in this type of campaign work would need to seek a PLR to guarantee that its activity is permissible by the IRS.

B. Actions by the Organization

The first potential option moving forward is for nonprofit organizations to analyze their activities under the guidance provided by the IRS and make a best guess as to how the IRS may rule on their activity. This option leaves the door open for a greater potential that the IRS may audit the organization and find that its activities are not permissible, resulting in a consequence that may not be recoverable for the organization. Still, many nonprofit organizations continue to engage in nonpartisan election work knowing that the IRS has discretion when determining whether their activities constitute political campaign intervention. Under the facts and circumstances test provided by the IRS and the above analysis, it is unlikely that a climate nonprofit will be subject to revocation due to these activities. A nonprofit that chooses to then conduct these activities would face an increased risk of auditing by the IRS, which could pose other potential problems, such as an increased burden on accounting and other administrative work or exposure to other IRS tax issues. This option also could potentially discourage potential donors or grantors from engaging with the organization out of fear that their money will not be used to its highest potential.

Another potential path forward is for an organization to test the IRS’s interpretation and understanding of section 501(c)(3) by filing an application for tax exemption which details the specific activities it plans to conduct at the intersection of climate and voter engagement. When applying for tax exemption, an organization must file Form 1023 with the IRS.[169] This application includes a narrative section in which the organization describes the activities of the organization, particularly those which qualify for tax exemption.[170] An organization could complete this section by detailing the campaign it hopes to run, like the one described above. This would force the IRS to determine whether it will grant the organization tax exemption based on that activity. If not, it allows the organization to request an explanation for the denial of exemption status under 501(c)(3).[171] Under section 6110 of the IRC, the IRS must publish final letters that revoke or deny an organization’s exempt status.[172] The benefit of this option is that it would allow organizations to get a glimpse into how the IRS may interpret voter engagement activities by climate organizations without risking current exempt status, but it would result in a loss of fees due to incorporation and applications.


Climate change is a growing issue in American society and politics, and an issue that will only continue to grow in significance. Climate and environmental nonprofits, which have been working for years to engage the community on these critical issues, should be free to further engage with their communities through nonpartisan voter education and mobilization campaigns without fear of losing their tax-exempt status. To provide clarity and stability in this work, the IRS should issue a revenue ruling indicating its interpretation of the Johnson Amendment as it relates to a climate organization’s voter education and mobilization work. These organizations face a web of incomplete guidance and grey areas to navigate to proceed in this work and, even when there is an indication that their activity will not pose problems, there is always a risk that the IRS will use its discretion to shut down the work, leaving many organizations to not engage at all.

While nonprofit organizations can choose to engage in these activities, it is at their own risk and they face potentially severe consequences if the IRS determines that their actions are not permissible. For these reasons, the IRS should issue guidance for climate nonprofits clarifying how they interpret the political campaign activity prohibition in Section 501(c)(3) and provide a comprehensive understanding of what activity is prohibited and permissible.

  1. *J.D. Candidate, 2024, University of Colorado Law School.
  2. I.R.C. § 501(c)(3) (2018). All references are to the Internal Revenue Code of 1986, as amended, unless otherwise specified. Organizations except under I.R.C. § 501(c)(3) are often referred to by their code section.
  3. Laws and Enforcement Governing the Political Activities of Tax Exempt Entities Before the Subcomm. on Taxation and IRS Oversight, 117th Cong. (2022).
  4. Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 118 (2022).
  5. I.R.C. § 501.
  6. I.R.C. § 501(c)(3).
  7. NCCS Project Team, The Nonprofit Sector in Brief 2019 (June 4, 2019), http://
  8. Id.
  9. Id.
  10. Id.
  11. I.R.C. § 501(c)(4).
  12. Comparison of 501(c)(3)s, 501(c)(4)s, and Political (527) Organizations, Bolder Advoc., Chart_paywall.pdf (last visited Oct 24, 2023).
  13. Id.
  14. Frequently Asked Questions, Sierra Club Delta Chapter, (last visited Jan 20, 2023).
  15. Paul Arnsberger et al., Internal Revenue Serv., A History of the Tax-Exempt Sector: An SOI Perspective 105 (2008),
  16. See id. at 106.
  17. Id.
  18. Wilson-Gorman Tariff Act, ch. 349, 28 Stat. 570 (1894) (emphasis added).
  19. Pollock v. Farmers’ Loan & Tr. Co., 157 U.S. 429 (1895) (held that the Wilson-Gorman Act was unconstitutional because imposing indirect taxes in violation of the constitutional requirement of uniformity).
  20. Arnsberger et al., supra note 14, at 107.
  21. Id.
  22. U.S. Const. amend. XVI.
  23. Arnsberger et al., supra note 14, at 124; 1987 Budget Reconciliation Act, 101 Stat. 1330-464 (codified as amended at I.R.C. § 501).
  24. Arnsberger et al., supra note 14, at 106.
  25. Id. at 124.
  26. I.R.C. § 501(c)(3).
  27. 100 Cong. Rec. S9604 (daily ed. July 2, 1954) (statement of Sen. Johnson).
  28. Id.
  29. Deirdre Dessingue, Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why; To What End?, 42 B.C. L. Rev. 903, 905 (2001).
  30. Id. at 905–906.
  31. Kate Lipman, Is the Johnson Amendment Constitutional?, Bos. Univ. Sch. L. Dome (May 20, 2020),; See also Citizens United v. FEC, 558 U.S. 310 (2010) (holding that corporations are considered persons and afforded constitutional protections).
  32. Christian Echoes Nat’l Ministry v. United States, 470 F.2d 849, 857 (10th Cir. 1972) (holding that “[i]n light of the fact that tax exemption is a privilege, a matter of grace rather than right . . . the limitations contained in Section 501(c)(3) withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech.”).
  33. Exec. Order No. 13,798, Promoting Free Speech and Religious Liberty, 82 Fed. Reg. 21675 (May 4, 2017).
  34. Salvador Rizzo, President Trump’s shifting claim that ‘we got rid’ of the Johnson Amendment, Wash. Post. (May 9, 2019, 3:00 AM),
  35. Independent Sector National Survey Results, Target Point, (last visited Sept. 6, 2023).
  36. 1987 Budget Reconciliation Act, 101 Stat. 1330-464 (codified as amended at I.R.C. § 501).
  37. Id.
  38. Id.
  39. 26 U.S.C. § 4955(a)(1) (2018); Alliance for Justice, The Rules of The Game: A Guide to Election-Related Activities for 501(c)(3) Organizations 18 (Rosemary E. Fei et al. eds., 2nd ed. 2018).
  40. Id.
  41. Id.
  42. Internal Revenue Serv., Final Report, Project 302: Political Activities Compliance Initiative 3–5 (2005) [hereinafter IRS 2004 PACI Report].
  43. Internal Revenue Serv., Political Activity Compliance Initiative, Procedures For 501(C)(3) Organizations (2006) [hereinafter IRS 2006 PACI Procedures].
  44. Alliance for Justice supra note 38, at 59.
  45. Id.
  46. Id. at 18.
  47. Id.
  48. Id.
  49. Id.; IRS 2006 PACI Procedures, supra note 42, at 4.
  50. Id.
  51. Protect your nonprofit’s tax-exempt status, Nat’l. Council of Nonprofits, (last visited Jan. 20, 2023).
  52. Id.
  53. Id.
  54. Id.
  55. See Branch Ministries v. Rossotti, 211 F.3d 137, 144–45 (D.C. Cir. 2000) (rejecting selective prosecution claim made by a church that had engaged in prohibited political activity).
  56. I.R.C. § 501(c)(3)(2018).
  57. Joseph S. Klapach, Thou Shalt Not Politic: A Principled Approach to Section 501(C)(3)’s Prohibition of Political Campaign Activity, 84 Cornell L. Rev. 504, 520 (1999) (quoting Treas. Reg. 1.501(c)(3)-1(b)(3)(ii) (as amended in 1990)).
  58. J.E. Kindell & J.F. Reilly, Internal Revenue Serv., Election Year Issues 335, 344 (2002), (“[W]ritten or oral endorsement of a candidate is strictly forbidden. The rating of candidates, even on a non-partisan basis, also is prohibited. [. . .] [An] organization may not distribute partisan campaign literature, provide or solicit financial or other forms of support to or for candidates or political organizations, or establish political action committees (PACs). In situations where there is no explicit endorsement or partisan activity, there is no bright-line test for determining if the IRC 501(c)(3) organization participated or intervened in a political campaign.”).
  59. Rev. Rul. 2007-41, 2007-1 C.B. 1421.
  60. Id.
  61. Cong. Rsch. Serv., 501(c)(3)s and Campaign Activity: Analysis Under Tax and Campaign Finance Laws 2 (2013).
  62. Kay Guinane, Wanted: A Bright-Line Test Defining Prohibited Intervention in Elections by 501(C)(3) Organizations, 6 First Amend. L. Rev. 142, 145 (2018).
  63. Id. at 150.
  64. U.S. Gov’t Accountability Off., GAO-20-66R, Campaign Finance: Federal Framework, Agency Roles and Responsibilities, and Perspectives 42 (2020).
  65. Id.
  66. Branch Ministries, Inc. v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000).
  67. Id. at 142.
  68. Id. at 140.
  69. Branch Ministries v. Rossotti, 40 F. Supp. 2d 15, 17 (D.D.C. 1999).
  70. Id.
  71. Branch Ministries, Inc. v. Rossotti, 211 F.3d at 140.
  72. Id. at 142.
  73. Association of the Bar of the City of New York v. Commissioner, 858 F.2d 876 (2d Cir. 1988), cert. denied, 490 U.S. 1030 (1989).
  74. Id. at 881–82.
  75. Id. at 880.
  76. Lloyd H. Mayer, Grasping Smoke: Enforcing the Ban on Political Activity by Charities, 6 First Amend. L. Rev. 1, 11 (2007).
  77. Kindell & Reilly, supra note 57, at 345–46 (quoting TAM 1999-07-021 (May 20, 1998)).
  78. Id. at 346.
  79. Id.
  80. Id.
  81. Understanding IRS Guidance – A Brief Primer, Internal Revenue Serv., (last updated May 1, 2023).
  82. Id.
  83. Rev. Rul. 80-282, 1980-2 C.B. 178; Rev. Rul. 78-248, 1978-1 C.B. 154.
  84. DC Bar Pro Bono Center, Monitoring Your Section 501(C)(3) Organization’s Activities with Respect to Political Campaigns (2017).
  85. Rev. Rul. 74-574, 1974-2 C.B. 161.
  86. Rev. Rul. 2007-41, 2007-25 I.R.B. 1421.
  87. Id.; Alliance for Justice, supra note 38, at 49.
  88. Id.
  89. Benjamin M. Leff, Fixing the Johnson Amendment Without Totally Destroying It, 6 U. Penn. J. of L. and Pub. Affs. 1, 125 (2020).
  90. Rev. Rul. 2007-41, 2007-25 I.R.B. 1421.
  91. Id.
  92. Rev. Rul. 78-248, 1978-1 C.B. 154.
  93. Id.
  94. Id. (emphasis added).
  95. Id.
  96. Rev. Rul. 80-282, 1980-2 C.B. 178.
  97. Id.
  98. Id.
  99. Rev. Rul. 2007-41, 2007-25 I.R.B. 1421; Guinane, supra note 61, at 149.
  100. Rev. Rul. 2007-41, 2007-25 I.R.B. 1421.
  101. Id.
  102. Id.
  103. Id.
  104. Id.
  105. Id.
  106. Id.
  107. GAO-20-66R, supra note 63, at 42.
  108. Rev. Rul. 2007-41, 2007-25 I.R.B. 1421.
  109. Id.
  110. Id.
  111. Id.
  112. Id.
  113. IRS 2004 PACI Report, supra note 41, at 3–5.
  114. Internal Revenue Serv., 2006 Political Activities’ Compliance Initiative 5 (2007) [hereinafter IRS 2006 Paci Report] (reporting that the IRS substantiated seventy-six political activity violations, including seven recommendations for revocation.).
  115. Jessica Priest et al., These 20 Churches Supported Political Candidates. Experts Say They Violated Federal Law, ProPublica (Nov. 7, 2022, 5:00 AM), https://www.
  116. Id.
  117. Matt Corley & Adam Rappaport, The IRS is not enforcing the law on political nonprofit disclosure violations, Citizens for Responsibility & Ethics in Washington (Apr. 28, 2022),
  118. Id.
  119. Paul Fahri, Four years later, the IRS tea party scandal looks very different. It may not even be a scandal., Wash. Post (Oct. 5, 2017, 4:51 PM), story.html.
  120. Id.
  121. Id.
  122. Id.
  123. Julie Patel, IRS rarely audits nonprofits for politicking, Ctr. for Pub. Integrity (Jan. 22, 2015),
  124. Frances R. Hill, Misadventures in Tax Administration (2005),
  125. Kelsey Snell, IRS targeted NAACP in 2004, Politico (May 13, 2013, 4:51 PM),
  126. Mike Allen, NAACP Faces IRS Investigation, Wash. Post (Oct. 29, 2004),
  127. Mayer, supra note 75, at 38; John Files, National Briefing, Washington: N.A.A.C.P. Won’t Aid Inquiry Into Tax Status, NY TIMES (Feb. 1, 2005),
  128. Mayer, supra note 75, at 38; Snell, supra note 124.
  129. Patel, supra note 122.
  130. Id.
  131. Priest et al., supra note 114.
  132. Jeremy Schwartz and Jessica Priest, Churches Are Breaking the Law by Endorsing in Elections, Experts Say. The IRS Looks the Other Way., ProPublica (Oct. 30, 2022, 5:00 AM),
  133. Id.
  134. Laws and Enforcement Governing the Political Activities of Tax Exempt Entities Before the Subcomm. on Taxation and IRS Oversight, 117th Cong. (2022).
  135. Id.
  136. Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 118 (2022).
  137. Cong. Rsch. Serv., IN11977, IRS-Related Funding in the Inflation Reduction Act 2 (2022). While some Congressional Republicans claim that the IRS plans to hire 87,000 agents to investigate taxpayers, this number is the number of overall employees the IRS plans to hire over the course of 10 years. Linda Qiu, Fact-Checking the Misleading Claim About 87,000 Tax Agents, Ny Times (Nov. 6, 2022),
  138. Benjamin Guggenheim, House Republicans use first vote to gut IRS funding boost, Politico (Jan. 9, 2023),
  139. Id.
  140. Katie Lobosco, House GOP keeps up attacks on IRS with bill to abolish the agency, CNN (Jan. 23, 2023), Some House Republicans have expressed their support for the Fair Tax Act, which would eliminate all federal income taxes, payroll taxes, estate taxes, and gift taxes in favor of a 30 percent sales tax collected by the states and remitted to the Treasury Department. If passed, this bill would “constitute the largest change to the US tax system in decades” and would all but abolish the tax code. Tobias Burns, Key Republicans oppose House GOP bill to abolish tax code, The Hill (Jan. 27, 2023),
  141., (last visited Jan. 20, 2023).
  142. See Id.
  143. Alliance for Justice, supra note 38, at 26.
  144. Situation Two: “Candidate G is running for the state legislature and an important element of her platform is challenging the environmental policies of the incumbent. Shortly before the election, C sets up a telephone bank to call registered voters in the district in which Candidate G is seeking election. In the phone conversations, C’s representative tells the voter about the importance of environmental issues and asks questions about the voter’s views on these issues. If the voter appears to agree with the incumbent’s position, C’s representative thanks the voter and ends the call. If the voter appears to agree with Candidate G’s position, C’s representative reminds the voter about the upcoming election, stresses the importance of voting in the election and offers to provide transportation to the polls.” Rev. Rul. 2007-41, 2007-25 I.R.B. 1421.
  145. Situation Four: “Organization D has been recognized as exempt under section 501(c)(3) of the Code. It is primarily concerned with land conservation matters. The organization publishes a voters guide for its members and others concerned with land conservation issues. The guide is intended as a compilation of incumbents’ voting records in selected land conservation issues of importance to the organization and is factual in nature. It contains no express statements in support of or in opposition to any candidate. The guide is widely distributed among the electorate during an election campaign.” Rev. Rul. 78-248, 1978-1 C.B. 154.
  146. Situation Three: The Organization publishes a monthly newsletter containing a summary of the “voting records of all incumbent Members of Congress on selected legislative issues important to it, together with an expression of the organization’s position on those issues” and “expressions of the organization’s views on a broad range of legislative, judicial, and administrative issues it considers significant. . . . Publication [] will occur after congressional adjournment and will not be geared to the timing of any federal election.” Rev. Rul. 80-282, 1980-2 C.B. 178.
  147. Situation One: “B, a section 501(c)(3) organization that promotes community involvement, sets up a booth at the state fair where citizens can register to vote. The signs and banners in and around the booth give only the name of the organization, the date of the next upcoming statewide election, and notice of the opportunity to register. No reference to any candidate or political party is made by the volunteers staffing the booth or in the materials available at the booth, other than the official voter registration forms which allow registrants to select a party affiliation. B is not engaged in political campaign intervention when it operates this voter registration booth.” Rev. Rul. 2007-41, 2007-25 I.R.B. 1421.
  148. Rev. Rul. 78-248, 1978-1 C.B. 154.
  149. Rev. Rul. 2007-41. 2007-25 I.R.B. 1421.
  150. Id.
  151. Jamie Fuller, Environmental policy is partisan. It wasn’t always., Wash. Post (June 2, 2014),; Scott Strand, The Murky Politics of Clean Water, Env’t Law and Pol’y Ctr. (Feb. 13, 2023),
  152. Justin Worland, Climate Change Used to Be a Bipartisan Issue. Here’s What Changed, Time (July 27, 2017),
  153. Id.
  154. Id.
  155. Congress Climate History, Ctr. for Climate & Energy Solutions Pol’y Hub, (last visited Jan. 20, 2023).
  156. Worland, supra note 151 (emphasis added).
  157. Ctr. for Climate & Energy Solutions Pol’y Hub, supra note 154.
  158. Id.
  159. Jennifer Marlon et al., Yale Climate Opinion Maps 2021, Yale Program on Climate Change Commc’ns (Feb. 23, 2022),
  160. Id.
  161. Official 2020 Presidential General Election Results, Fed. Election Comm’n,
  162. Rev. Proc. 89-14, 1989-8 I.R.B. 20; Exempt Organizations Public Disclosure, Internal Revenue Serv., (last updated Jan. 5, 2023).
  163. Rev. Proc. 89-14, 1989-8 I.R.B. 20.
  164. Understanding IRS Guidance, supra note 80.
  165. Id.
  166. Id.
  167. Id.
  168. J. Michael Pusey, New Act & Ruling: What Are the Fundraising Repercussions?, 15 Nonprofit World 1, 19 (1997).
  169. Applying for Tax Exempt Status, Internal Revenue Serv., (last updated Mar. 13, 2023).
  170. Instructions for Form 1023, Internal Revenue Serv., irs-pdf/i1024.pdf (last updated Jan. 2022).
  171. Exempt Organizations Public Disclosure, supra note 161.
  172. I.R.C. § 6110(a) (2018).