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

Abstract

Abstract

The Supreme Court's landmark decision in Citizens United v. FEC provided corporations with the highest level of First Amendment speech protection, at least in the context of election-related speech. On its face, this strong level of protection would seem to throw into doubt the speech-related restrictions federal tax law imposes on charities, including the limits on lobbying. There are, however, at least two reasons to believe this conclusion is incorrect. First, the effect of the Citizens United holding on the lobbying limits for charities is unclear because of the Supreme Court's identification of a government subsidy—in the form of tax benefits—in the charity context. Second, the Court's related decision to conclude that a charity's First Amendment rights are sufficiently vindicated by the ability to speak through the alternate channel of a non-charitable affiliate further complicates the analysis. At the same time, however, these complications provide grounds for considering whether a more nuanced, “institutional rights” approach to First Amendment speech protection is appropriate in the context of lobbying by charities and perhaps also in other “subsidy” contexts. Part I of this article briefly reviews both the federal tax law limits on lobbying by charities and the Supreme Court's basis for concluding that the limits are constitutional. Part II then reviews the Citizens United decision and why that decision is unlikely to have an immediate effect on the viability of those limits. Finally, Part III considers how both the Citizens United decision and a broader institutional rights perspective may instead affect the ability of the federal government to restrict the relationships between charities and their non-charitable affiliates that engage in lobbying, as well as affecting other contexts where the government places speech-related conditions on the provision of government subsidies.