How Would a Post-Citizens United Constitutional Amendment Impact Nonprofits?

By Ciara Torres-Spelliscy Whether nonprofits should stay out of politics or be active political players is hotly debated.1 For most of the 20th Century, like other corporations, social welfare organizations organized under 501(c)(4) of the Internal Revenue Code were barred from participating in federal elections.2 This changed in 1986 with a Supreme Court case called MCFL. After that point, certain ideological 501(c)(4)s could buy ads expressly advocating the election or defeat of federal candidates,3 so long as the nonprofits were not funded by business corporations.4 In Citizens United the Supreme Court loosened the rules further by allowing both nonprofits (with the exception of 501(c)(3)s)5 and for-profit corporations to buy an unlimited supply of political ads.6 This case has been met with a torrent of criticism from lawyers and laypersons alike who want this controversial decision reversed.7 This paper briefly addresses how a

Ciara Torres-Spelliscy is an Assistant Professor of Law at Stetson University College of Law where she teaches Election Law, Constitutional Law and Corporate Governance. 1 Ellen P. Aprill, Regulating the Political Speech of Noncharitable Exempt Organizations After Citizens United, 10 ELECTION L.J. 363 (2011); Ciara Torres-Spelliscy, Hiding Behind the Tax Code, the Dark Election of 2010 and Why Tax-Exempt Entities Should Be Subject to Robust Federal Campaign Finance Disclosure Laws, 16 NEXUS: CHAP. J. OF L. & PUB. POLY 59, 60 (2011). 2 IRS, Social Welfare Organizations (Sept. 15, 2009); IRS regulations provide that the promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office. See Treas. Reg. 1.501(c)(4)-1(a)(2)(i) and (ii). 3 Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976) (express advocacy includes vote for, elect, support, cast your ballot for, Smith for Congress, vote against, defeat, and reject). 4 Massachusetts Citizens for Life v. FEC, 479 U.S. 238, 259 (1986) (MCFL is not the type of traditional corporatio[n] organized for economic gain, that has been the focus of regulation of corporate political activity.). 5 Donald B. Tobin, Political Advocacy and Taxable Entities: Are they the Next Loophole?, 6 FIRST AMENDMENT L. REV., 41, 51 (Fall 2007) (to ensure that tax-exempt status is not used as a means of subsidizing political campaign activity, the tax code prohibits 501(c)(3) organizations from participating or intervening in any political campaign on behalf of (or in opposition to) any candidate for public office. There is no de minimis exception to this rule...). 6 Until Citizens United, the Federal Elections Campaign Act (FECA) prohibited corporations (profit or nonprofit), labor organizations and incorporated membership organizations from making contributions or expenditures in connection with federal elections. 2 U.S.C. 441b. 7 Press Release, Greenberg Quinlan Rosner Research,Two Years After Citizens United, Voters Fed Up with Money in Politics, Jan. 19, 2012 (finding Americans strongly oppose the Citizens United decision and a majority (55 percent) believe that corporations should not have the same constitutional rights as individuals.); Dan Eggen, Poll: Large Majority Opposes Supreme Courts Decision on Campaign Financing, WASH. POST, Feb. 17, 2010 ([e]ight in 10 poll respondents say they oppose the high courts Jan. 21 decision to allow unfettered corporate political spending, with 65 percent strongly opposed.).

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constitutional amendment to overturn Citizens United might impact the political rights of nonprofits.8 I. Ways to Reverse a Supreme Court Case

There are two ways to undo a constitutional decision by the Supreme Court: either (1) the Supreme Court itself overrules its prior opinion in a later decision or (2) the country amends the Constitution pursuant to Article V. In 2012, the Supreme Court had and declined the opportunity to reverse Citizens United in American Tradition Partnership.9 This case raised nearly identical issues as the original Citizens United case, but in the context of state elections. The U.S. Supreme Court summarily reversed the Montana Supreme Court, which had found just months before that Montanas campaign finance ban on corporate political expenditures could stand.10 The Supreme Courts summary reversal in American Tradition means that both state and federal bans on corporate political expenditures are constitutionally suspect.11 Thus, with the Roberts Court committed to its stance in Citizens United, the only way to get rid of the case is through the cumbersome constitutional amendment process. II. What if We Had a 28th Amendment?

Since 2010, many thoughtful reformers have argued that only a constitutional amendment can fix the damage done by Citizens United as the latest in a long string of pro-corporate decisions from the Supreme Court.12

While this article will discuss 501(c)(3)s, 501(c)(4)s, and 501(c)(6)s, these are just three of twenty-eight types of non-profits listed in Section 501 of the Internal Revenue Code. See generally Ellen Aprill, Background on Nonprofit, Tax-Exempt Section 501(c)(4) Organizations, ELECTION LAW BLOG (undated). 9 Rachel Weiner, Democracy Corps, Supreme Courts Montana Decision Strengthens Citizens United, WASHINGTON POST (June 25, 2012) (quoting Sen. Schumer as saying that the Court was further tipping the balance of power in America in favor of deep-pocketed, outside interests); Rick Pearson, Durbin: May Take New Court to Overturn Super PAC Ruling, L.A. TIMES (June 25, 2012) (quoting Sen. Durbin as saying that American Tradition showed that it did not understand that oligarchs are trying to control the political system for their own purposes). 10 American Tradition Partnership, Inc. v. Bullock, No. 111179, 567 U. S. __ (June 25, 2012) (Per curiam order summarily reversing the Montana Supreme Court). 11 James Vicini, Supreme Court Permits No Limits on State Campaign Funds, REUTERS, June 25, 2012 (In a blow to those trying to restrict corporate spending in U.S. elections, the U.S. Supreme Court on Monday ruled against a century-old law in Montana that set limits on business spending for political campaigns in the state.); Adam Liptak, Court Declines to Revisit Its Citizens United Decision, N.Y. TIMES, June 25, 2012 (In a brief unsigned decision, the Supreme Court on Monday declined to have another look at its blockbuster 2010 campaign finance decision, Citizens United .). 12 JEFFREY D. CLEMENTS, CORPORATIONS ARE NOT PEOPLE (2012) (arguing for a 28th Amendment); Kyle Langvardt, The Sorry Case for Citizens United: Remarks at the 2012 Charleston Law Review and Riley Institute of Law and Society Symposium, 6 CHARLESTON L. REV. 569, 581
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The panel today requires me to assume that the U.S. Constitution has been amended to undo Citizens United. There are at least a bakers dozen of possible constitutional amendments floating around Capitol Hill at this time.13 For this piece, I will assume that House Joint Resolution 88 is adopted in conformity with Article V.14 The question I am addressing is what would we expect the consequences of such an amendment to be on the political rights of nonprofit corporations? This is an appropriate question to ask since over the past few decades nonprofits have been at the forefront of challenging campaign finance laws and thereby have helped to shape the jurisprudence in this area of the law.15 The text of the House Joint Resolution 88 is the following:
Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons. Section 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are (2012) (arguing for a constitutional amendment to create a domain in which the government can regulate campaign finance without worrying about running afoul of the First Amendment); Robert Weissman, Let the People Speak: The Case for A Constitutional Amendment to Remove Corporate Speech from the Ambit of the First Amendment, 83 TEMP. L. REV. 979, 980 (2011) (asserting that a constitutional amendment is needed to overturn Citizens United and ensure that corporations do not receive the same First Amendment speech protections as people); Senator Tom Udall, Amend the Constitution to Restore Public Trust in the Political System: A Practitioners Perspective on Campaign Finance Reform, 29 YALE L. & POLY REV. 235, 237 (2010) (promoting a constitutional amendment that grants Congress the ability to enact meaningful campaign finance reform and remove corporate money from politics). 13 See for example S. J. Res. 29, 112th Cong., Nov. 1, 2011 (introduced by Tom Udall) (Congress shall have power to regulate campaign finance within federal elections. The several states shall have the power to regulate state elections. And Congress has the power to implement the Amendment by appropriate legislation); S. J. Res. 33, 112th Cong., Dec. 8, 2011 (introduced by Bernie Sanders) (Corporations are not persons and do not have rights equal to the people. Corporations are subject to regulation by the people. Campaign contribution and election expenditures by corporations are banned. The final section would affirm that Congress and state legislatures have the power to regulate campaign financing; S. J. Res. 35, 112th Cong., Jan. 24, 2012 (introduced by Max Baucus) (Congress has the ability to regulate campaign contributions and expenditures by corporations, for-profit entities, and labor unions in federal elections. States would have the power to do the same in state elections. Nothing in the Amendment should be construed to give the power to abridge freedom of the press.). 14 H.J. Res. 88, 112th Cong., (introduced by James McGovern). 15 Citizens United v. FEC, 130 S. Ct. 876 (2010); FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, (2007); FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994); Austin v. Michigan Chamber of Com., 494 U.S. 652 (1990) overruled by Citizens United v. FEC, 130 S. Ct. 876 (2010); MCFL, 479 U.S. 238; FEC v. Natl Conservative Political Action Comm., 470 U.S. 480 (1985); Brown v. Socialist Workers 74 Campaign Comm. (Ohio), 459 U.S. 87 (1982); FEC v. Natl Right to Work Comm., 459 U.S. 197 (1982); FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981).

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otherwise consistent with the powers of Congress and the States under this Constitution. Section 3. Nothing contained herein shall be construed to limit the peoples rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable..

This Resolution copies word for word the Peoples Rights Amendment crafted by Jeffrey D. Clements and MacArthur Genius John Bonifaz.16 III. How a Peoples Rights Constitutional Amendment Could Impact Nonprofits

I have no powers of prognostication, but I can imagine what legal consequence might flow from the Peoples Rights Amendment. The amendment would not be self-executing when it comes to treating nonprofits differently than other political speakers. Rather, legislative bodies would have to pass legislation pursuant to the new 28th Amendment which would address the new parameters of their role in politics. A. Taking Nonprofits Out of Partisan Politics Unless They Are MCFLs One possible result of a Peoples Rights Amendment is to restore the status quo ante before both Citizens United (2010) and American Tradition Partnership (2012). For a quarter of a century, between Massachusetts Citizens for Life (MCFL)17 and Citizens United, ideological nonprofits had the same right as individuals to spend on political ads. In other words, ideological nonprofits could spend money on express advocacy in federal elections so long as they did not take money from business corporations to fund that advocacy. Thus during the MCFL-Citizens United (1986-2010) timeframe, the government was permitted to distinguish between (1) business corporations on the one hand and (2) ideological nonprofits on the other. During this time frame, business corporations could be banned from funding political ads (under Taft-Hartley and McCain-Feingold),18 meanwhile, ideological nonprofits were allowed to spend on political ads (pursuant to MCFL and FECs regulations).19 The justification for this distinction between for-profit business corporations and ideological nonprofits was based on differential funding streams.20 With an ideological nonprofit, say MCFL itself, a court could reasonably conclude that all persons who gave money to the anti-abortion
JEFFREY D. CLEMENTS, CORPORATIONS ARE NOT PEOPLE, 166 (2012) (containing the text of the Peoples Rights Amendment). 17 MCFL, 479 U.S. 238. 18 Pub. L. No. 80101, 61 Stat. 159 (1947); 2 USC 441b. 19 11 CFR 114.10 (detailing the MCFL exemption at the FEC). 20 MCFL, 479 U.S. at 258 (The resources in the treasury of a business corporation, however, are not an indication of popular support for the corporations political ideas.).
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group supported its political stances writ large-- from supporting pro-life ballot measures to pro-life candidates for elective office. When a donor gave to such an ideological nonprofit, the donor was implicitly consenting to her donation being used in politics.21 However, this constructive consent does not hold true for either of the primary sources of funds for business corporations: customers and shareholders.22 Customers who buy a product do not necessarily agree with a corporations choice for President or any other candidate. Furthermore, shareholders are ideologically diverse. Many may not want any corporate resources diverted for any political purpose; many would prefer a larger dividend instead.23 By overruling Austin,24 Citizens United did away with this distinction between ideological nonprofits and business corporations, lumping all corporate speakers into a single category and allowing all of them, from the lowly nonprofit to the massive multinational corporation, the ability to spend their treasury funds on political ads.25 Incorporating the Peoples Rights Amendment could merely allow the state to distinguish, once again, among corporate speakers. If this is the case, the state might exclude only business corporations from political spending, while allowing ideological nonprofits to spend money on politics freely.26 B. Banning Nonprofits from Ballot Measure Fights Alternatively, the 28th Amendment could open the door to far less political speech by nonprofits by overruling Bellotti. In other words, instead of turning the clock back to the day before Citizens United in 2010, it is possible
Id. at 257-58 (1986) (The resources in the treasury of a business corporation reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.). 22 Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 415 n.28 (1972) (We are of the opinion that Congress intended to insure against officers proceeding in such matters without obtaining the consent of shareholders by forbidding all such [political] expenditures.); United States v. Cong. of Indus. Orgs., 335 U.S. 106, 113 (1948) (explaining Taft-Hartley was motivated by the feeling that corporate officials had no moral right to use corporate funds for contribution to political parties without the consent of the stockholders). 23 Adam Winkler, McConnell v. FEC, Corporate Political Speech, and the Legacy of the Segregated Fund Cases, 3 ELECTION LAW JOURNAl 361 (2004) (arguing treasury funds reflect the economically motivated decisions of investors or members who do not necessarily approve of the political expenditures, while segregated fundssuch as a political action committee (PAC) raise and spend money from knowing, voluntary political contributors). 24 Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (overruled by Citizens United). 25 Citizens United, 130 S. Ct. 876. 26 This paper presumes that the federal ban on corporate contributions directly to federal candidates pursuant to the Tillman Act would persist. FEC v. Beaumont, 539 U.S. 146, 161 (2003) (Within the realm of contributions generally, corporate contributions are furthest from the core of political expression, since corporations First Amendment speech and association interests are derived largely from those of their members.).
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that Congress or other legislative bodies could take the opportunity to restore the law to what it was before the Bellotti decision in 1978. Ballot measure fights have been subject to far fewer campaign finance restrictions than candidate elections because the anti-corruption rationale found in Buckley is simply not implicated in the ballot measure context.27 In a typical ballot measure fight, there simply is no candidate to corrupt. Rather there is just a campaign for and against the measure.28 In the ballot measure context, all entities are allowed to spend an unlimited amount for or against the issue, but are subject to basic disclosure requirements.29 This is in stark contrast to federal candidate elections where contribution limits apply to candidates and national political parties because of anti-corruption concerns.30 Consequently, in Bellotti, the Supreme Court ruled that corporations could not be barred from funding ballot measure fights. And indeed, corporations have played a significant role in ballot measure fights. For example in 2010, energy company PG&E spent $46 million in a failed attempt to pass a ballot measure which would make opening municipal power companies in California more difficult.31 And nonprofits have also exercised this right to spend on ballot measures in California elections. For example, the nonprofit trade association known as PhRMA funded 311 ballot measures in the past eleven years in California.32 However, with a new 28th Amendment in place, nonprofits like other corporations could be barred by the states from ballot measure fights, leaving only individuals to pay for these battles. This could skew these ballot measure
The Ninth Circuit allowed unlimited fundraising and expenditures because the government did not provide evidence demonstrating a sufficiently important governmental interest, such as the risk of corruption for limiting those contributions. Citizens for Clean Govt v. City of San Diego, 474 F.3d 647, 650 (9th Cir. 2007). 28 In some state there are candidate controlled ballot measure committees which does raise the possibility of Buckley style corruption even in the ballot measure context. 29 For an in depth discussion of the special issues raised by ballot measures, see Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and Disclosure Plus, 50 UCLA L. REV. 1141, 1141 (2003) (strengthening heuristic cues in direct democracy offers the best means of rehabilitating voter competence pragmatically, at low cost, without trying to force voters to adjust the way they think about politics). 30 United States v. Intl Union United Auto., Aircraft & Agric. Implement Workers, 352 U.S. 567, 576 (1957) (one of the great political evils of the time is the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions. Many believe that when an individual or association of individuals makes large contributions for the purpose of aiding candidates of political parties in winning the elections, they expect, and sometimes demand, and occasionally, at least, receive, consideration by the beneficiaries of their contributions which not infrequently is harmful to the general public interest.) (Frankfurter, J. (quoting 65 Cong. Rec. 950708 (1924)). 31 John Howard, Despite $46 Million Spending Fest, Proposition 16 Goes Down, CAPITOL WEEKLY, (June 10, 2010); see also California Secretary of State, State Ballot Measures Results 2010. 32 Coulter Jones & Elizabeth Titus, States Top 100 Political Donors Contribute $1.25 Billion, CALIFORNIA WATCH, June 4, 2012.
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fights towards wealthy individuals who presently have to complete for time, ad space and public attention with business corporations, unions and nonprofits. Arguably, this type of corporate ballot measure ban would still be subject to probing review by the Courts. Notwithstanding the 28th Amendment, Justices could still apply standard equal protection analysis in a future case to ask whether a ban on nonprofits spending in the context of a ballot measure fight was narrowly tailored to achieve a compelling state interest. Courts might well find that this is a bridge too far and continue to allow, as they do now, nonprofits to spend in ballot measure fights. C. Getting More Strings Attached to Federal Dollars for Nonprofits Another related area of the law which might change with a 28th Amendment would be in the unconstitutional conditions doctrine. This doctrine prevents the Congress from adding unconstitutional conditions to the recipients of government grants and contracts. The government may not deny a benefit to a person on a basis that infringes a constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized or inhibited.33 This simple rule that a government grantee must not be forced to give up constitutional right in exchange for the money has not been uniformly applied, and has frustratingly led the court to strike restrictions on First Amendment rights in some contexts, but not in others.34 The Peoples Right Amendment could be used to attach far more onerous conditions on the receipt of federal funds, including conditions which hamper a nonprofits right to speak politically. This could alter the unconstitutional conditions doctrine. In particular, under the Reagan case, the court found it was constitutional to require 501(c)(3)s to create an affiliated 501(c)(4) through

Perry v. Sindermann, 408 U.S. 593, 597 (1972). Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (upholding the Solomon Amendment); Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (Congress may not deny funding to lawyers in federal legal aid program who counsel clients to challenge existing welfare laws); Rust v. Sullivan, 500 U.S. 173, 200 (1991) (Congress may require federal health funding recipients not to counsel patients about abortion and endorsing the general rule that the Government may choose not to subsidize speech.); FCC v. League of Women Voters of California, 468 U.S. 364 (1984) (Congress may not cut off funding to broadcasting station that engages in on-air editorializing); Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) (Congress may deny tax deductions for contributions to a lobbying organization); Speiser v. Randall, 357 U.S. 513 (1958) (a state could not require veterans otherwise eligible for property tax exemptions to swear that they did not advocate forcible overthrow of the government).
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which to carry on lobbying.35 After Citizens United, some have questioned whether the logic of Reagan survives.36 But the 28th Amendment would reinforce Reagan as good law. And if taken to its logical conclusion, not only could this type of separation of lobbying from day to day operations be imposed on 501(c)(3)s whose donation are subsided by the taxpayer, but also to all other nonprofits.37 Thus, perhaps, all nonprofits could be required to spend on politics through affiliated entities instead of through their general treasuries.38 Again, just because the 28th Amendment becomes operative, that would not erase the other parts of the Constitution or other relevant parts of Supreme Court precedent. Despite the 28th Amendment, the Supreme Court could still find a particularly obnoxious requirement that treated nonprofits that received government funds, through subsidies, grants or contracts, more restrictively than any other type of speaker to be irrational, and therefore unconstitutional, even under the most lenient type of judicial review.39 D. Less Anonymity for Donors to Nonprofits Instead of trying to make nonprofits less politically active after the adoption of the 28th Amendment, the state could merely require that those that are politically active be more transparent and accountable. Since 2000, the federal government has been uneven in its requirements that politically active nonprofits disclose their underlying donors to the public.40 After 2000, a nonprofit organized as a 527 can do as much political
Regan v. Taxation Without Representation, 461 U.S. 540, 549 (1983) (a legislatures decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.). 36 Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98 VA. L. REV. 479, 577 n. 18 (2012) (reasoning that Regan may no longer apply because the justification supporting tax exemption under 501(c)(3), the availability of political speech through a parallel organization, was called into question by Citizens Uniteds holding that the availability of engaging in political speech through PACs did not excuse a ban on corporate electioneering communications); see generally Paul Weitzel, Protecting Speech from the Heart: How Citizens United Strikes Down Political Speech Restrictions on Churches and Charities, 16 TEX. REV. L. & POL. 155 (2011) (exhaustively discussing the ways in which Citizens Uniteds holding conflicts with Regan). 37 The Supreme Court held that Congress could decide that tax exempt charities . . . should not further benefit at the expense of tax payers by obtaining a further subsidy for lobbying. Regan, 461 U.S. at 550 (quoting Cammarano v. United States, 358 U.S. 498, 515 (1959) (Douglas, J., concurring)). 38 FEC v. Natl Conservative Political Action Comm., 470 U.S. 480, 494 (1985) (The First Amendment freedom of association is squarely implicated . NCPAC and FCM are mechanisms by which large numbers of individuals of modest means can join together in organizations which serve to amplif[y] the voice of their adherents.). 39 Maher v. Roe, 432 U.S. 464, 476 (1977) (constitutional concerns are greatest when the State imposes its will by force of law; the States power to encourage actions deemed to be in the public interest is necessarily far broader). 40 For example, 501(c)(4)s and (6)s may participate in partisan politics but they are not required to share the source of their funds with the public. L. PAIGE WHITAKER ET AL., CONG. RESEARCH
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activity as it desires, but it remains subject to public disclosure of its contributors by the IRS.41 Meanwhile two other types of nonprofits, which have increased their political activity in recent years, 501(c)(4)s and 501(c)(6),42 are not subject to public disclosures by the IRS.43 To be more consistent, all three groups should be subject to the requirement that their underlying donors be disclosed when the nonprofit spends on political ads in federal elections as defined by existing campaign finance law: FECA and BCRA.44 In the years since Citizens United was decided, several on the ideological right have argued that NAACP v. Alabama provides the legal justification for providing anonymity for those who spend through political nonprofits including multi-national business corporations.45 In the seminal case NAACP v. Alabama, the Supreme Court recognized the right to freedom of association as one of the fundamental guarantees of the First Amendment. In NAACP, the Court acknowledged the importance that an association can play in advancing the First Amendment activities of its members.46 The Court also acknowledged that the freedom to engage in association for the advancement of common beliefs is protected by the Due

SERV., R 41096, LEGISLATIVE OPTIONS AFTER CITIZENS UNITED V. FEC: CONSTITUTIONAL AND LEGAL ISSUES 6 n.41 (2010) (Under the Internal Revenue Code, 501(c) organizations that file an annual information return (Form 990) are generally required to disclose significant donors (typically those who give at least $5000 during the year) to the Internal Revenue Service (IRS). 26 C.F.R. 1.6033- 2(a)(2)(ii)(f). No identifying information of donors to 501(c) organizations is subject to public disclosure under the tax laws except in the case of private foundations (which are a type of 501(c)(3) organization).). 41 26 U.S.C. 527; Treas. Reg. 1.527-6(f); IRS, Definition of Political Organization (October 31, 2007); ERIKA K. LUNDER & L. PAIGE WHITAKER, CONG. RES. SERV., 527 GROUPS AND CAMPAIGN ACTIVITY: ANALYSIS UNDER CAMPAIGN FINANCE AND TAX LAWS 2 (2008) (Congress amended IRC 527 in 2000 and 2002 to generally require that most 527 political organizations report information to the IRS. . . .). 42 PAUL DENICOLA, BRUCE F. FREED, STEPHAN C. PASSANTINO, & KARL J. SANDSTROM, HANDBOOK ON CORPORATE POLITICAL ACTIVITY, EMERGING CORPORATE GOVERNANCE ISSUES 12 (2010) (Heightened political activity on the part of some independent 527s has led to an increase in regulation. This made 501(c)(4) and 501(c)(6) organizations more attractive vehicles for some donors.). 43 Torres-Spelliscy, supra note 1. 44 Id. 45 Kimberley A. Strassel, Obamas Gangster Politics, WALL ST. J., May 5, 2011; John Yoo & David W. Marston, Overruling Citizens United with Chicago-Style Politics: Federal Contract Bidders Must Disclose Political Giving, AM. ENTER. INST. LEGAL OUTLOOK (July 20, 2011). 46 Buckley, 424 U.S. at 12 (quoting NAACP v. Alabama, 357 U.S. 449 (1958)) (This Court has held, for instance, that an organization may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure . . . of their affiliation).

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Process Clause of the Fourteenth Amendment.47 And the Court concluded that NAACP could keep its membership lists private from the state.48 However, the Supreme Court has already made clear since Buckley, in 1976, that campaign finance disclosure are distinguishable from NAACP because of the unique rationales that justify transparency in the context of elections: (1) the voter informational interest (2) the anti-corruption interest and (3) the anti-circumvention interest.49 But nonetheless, there had been an on-going and escalating use of nonprofits in recent election cycles to shield the identity of big political spenders. Under current law, campaign finance regulators can already compel disclosure unless it would subject the group to a threat of physical harassment.50 Even Justice Scalia has written, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.51 An amendment stripping speech rights from corporations would clarify that the right to anonymity, to the extent that right exists at all,52 would not be a sufficient excuse to stop a properly tailored money in politics disclosure law for politically active nonprofits.53

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231, 233 (1977) (quoting NAACP v. Alabama, 357 U.S. 449 (1958)) (Our decisions establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments). 48 Doe v. Reed, 130 S. Ct. 2811, 2819 (2010) (we have required that the subordinating interests of the State [justifying disclosure] survive exacting scrutiny a half century of our case law firmly establishes that individuals have a right to privacy of belief and association.). 49 Buckley, 424 U.S. at 67; McConnell v. FEC, 540 U.S. 93, 196-97 (2003) (accord); Doe v. Reed, 130 S. Ct. 2811, 2819-20 (2010) (electoral integrity interest in ballot initiative process); Citizens United, 130 S. Ct. at 916 (accord voter informational interest). 50 Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 69 (2006) (we have held laws unconstitutional that require disclosure of membership lists for groups seeking anonymity, and that [a]lthough these laws did not directly interfere with an organization's composition, they made group membership less attractive, raising the same First Amendment concerns about affecting the groups ability to express its message.). 51 Doe, 130 S. Ct. at 2837 (Scalia, J., concurring). 52 McIntyre v. Ohio Elections Commn, 514 U.S. 334, 379 (1995) (noting that [s]everal of our cases have held that in peculiar circumstances the compelled disclosure of a persons identity would unconstitutionally deter the exercise of First Amendment associational rights . . . But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a reasonable probability that the compelled disclosure would result in threats, harassment, or reprisals from either Government officials or private parties.). 53 Michael S. Kang, After Citizens United, 44 IND. L. REV. 243, 253 (2010) (The Court has always been more deferential toward campaign finance disclosure requirements than it has been toward outright limits. . . . Doe v. Reed generally signals that even the Roberts Court remains deferential to government compelled campaign disclosure.).
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Conclusion How a new 28th Amendment would impact the political life of nonprofits in the future is a known unknown. A 28th Amendment could have a profound impact on how much nonprofits engage in American politics. On the other hand, the Courts would not become powerless, even in the face of an amended Constitution, to consider the reasonableness and rationality of any future restrictions to the speech rights of nonprofits. If the Peoples Rights Amendment is adopted, ideological nonprofits that would have qualified for the MCFL exception during the 1986-2010 period would likely be able to carve out a safe harbor for their political speech. Those nonprofits that are mere alteregos for businesses would likely face an uphill battle in preserving their political rights.

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