A new lawsuit pushed by conservative operatives with ties to Donald Trump, right-wing power broker Leonard Leo, and a hate group could make donations to dark-money groups tax deductible. Such an outcome could further incentivize the massive surge of dark money flowing into politics, where there are already no limits on how much the rich and powerful can spend to influence elections.
“On the one hand, I don’t think it can get much worse because we have so much dark money in politics already,” said Darryll Jones, a law professor at Florida A&M University in Tallahassee who has been following this lawsuit. However, if the National Religious Broadcasters win, it may “result in a bunch of smaller and medium ‘charities’ coming into bloom precisely to get into politics… That part right there is worrisome.”
This flood of dark money in politics was ushered in by the 2010 Supreme Court Citizens United decision, which allowed corporations and outside groups to spend unlimited amounts on elections. This was part of a coordinated, 50-year effort to solidify corporate America’s control of the electoral system.
The current election cycle has seen a record-breaking amount of dark money flooding into campaign coffers.
These massive pools of untraceable cash, much of which is connected to right-wing kingmaker Leonard Leo, helped solidify the Supreme Court far-right supermajority that rescinded federal abortion protections and bankrolled the Project 2025 plan to dismantle the federal government. Dark-money groups have also been involved in recent voter suppression campaigns and blackmail efforts that forced lawmakers to enact corporate-friendly laws.
With the rise of so-called donor-advised funds — shadowy charity groups run by the nation’s top financial firms — Wall Street has been helping wealthy donors funnel cash to dark-money and extremist groups. Now, if this new lawsuit is successful, the country’s rich and powerful could have even more incentive to fund dark-money efforts, courtesy of a big tax break.
The combination of donor anonymity and new tax benefits could bring “a bigger inflow of dark money into politics,” Jones said.
Years Of Pushback
Introduced to the U.S. tax code in 1954, the Johnson Amendment bans all such tax-exempt groups from “directly or indirectly” engaging in political campaigns, to ostensibly shield religious organizations and other nonprofits from political influence. Churches and religious leaders have long argued that this amendment restricts their religious freedom by censoring their speech.
But amid lax Internal Revenue Service (IRS) enforcement following decades of underfunding, many religious organizations have flouted the Johnson Amendment by endorsing candidates. Additionally, in 2017, former President Donald Trump promised to “totally destroy” the Johnson Amendment at the annual National Prayer Breakfast. Later that year, he signed a rule ostensibly granting more leeway to religious groups for political speech.
Years of pushback, along with a conservative majority on the Supreme Court that has continuously favored religious freedom, has left the Johnson Amendment on shaky ground, said Jones — and the new lawsuit could deliver a deadly blow.
Similar to past arguments, the National Religious Broadcasters and other plaintiffs in the suit argue that the Johnson Amendment places churches in a “unique and discriminatory status” that silences their speech.
Proponents for the Johnson Amendment, on the other hand, say the law has a fairly narrow scope. Activities including nonpartisan voter education, church-hosted voter registration drives, and sermons about social and political issues are still permitted.
“The IRS has no mechanism for prohibiting speech,” said Erin Chlopak, senior director of campaign finance at the Campaign Legal Center, a nonpartisan organization that advocates for voting rights. “[The law] is just saying that if they support political candidates, they might not be able to get that tax exemption.”
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While nonprofits are not required to reveal the identities of most donors to the public or IRS, they must disclose the names and addresses of “substantial contributors” — those who donate at least $5,000 per tax year, if that amount is more than two percent of the total contributions received by the organization that year.
“Donors have made clear that they are afraid of ‘retribution’” if their identities are disclosed to the IRS, according to the Buckeye Institute’s lawsuit.
This suit follows a 2021 Supreme Court ruling that California-based nonprofits do not have to disclose the names of their biggest donors, a victory for dark-money groups. The case was brought by Americans for Prosperity Foundation, a conservative political advocacy group tied to the right-wing, billionaire-backed Koch network.
The National Religious Broadcasters lawsuit was filed in the Eastern District Court of Texas, where the plaintiffs may find a welcoming audience. The court, which is stacked with conservative judge appointments, has come under scrutiny for being a target of judge shopping, in which attorneys file cases in courts where they expect to find a judge friendly to their cause.
The Eastern District Court falls under the jurisdiction of the federal Fifth Circuit Appeals Court, known for issuing right-wing rulings and siding with conservative interests.
If both the National Religious Broadcasters and the Buckeye Institute lawsuits are successful, Jones says, wealthy donors will be able to engage in tax-deductible, anonymous dark-money campaigning, no matter the amount.
A Larger Conservative Network
While the National Religious Broadcasters’ lawsuit is ostensibly about religious freedom, the plaintiffs involved in the case have close ties to far more sprawling efforts to roll back federal protections and enact a far-right agenda.
Jerry Johnson, former president of the National Religious Broadcasters, and Michael Farris, former president of the conservative Christian legal group Alliance Defending Freedom and one of the lawyers on the lawsuit, are both contributors to The Federalist Society — a network of conservative and libertarian lawyers built by Leo as part of his efforts to reshape the country’s courts.
Alliance Defending Freedom — which has long organized “pulpit freedom” Sundays where preachers have routinely endorsed candidates — is designated as a hate group by the Southern Poverty Law Center legal advocacy organization because it has helped develop “religious liberty” legislation that denies services to LGBTQ+ people. The organization also worked alongside Leo’s Federalist Society to help overturn Roe v. Wade and restrict access to abortion medication. Leo has praised Alliance Defending Freedom as “formidable” and “a real major force in the conservative legal world.”
This February, Trump pledged to defend Christian values at the National Religious Broadcasters International Christian Media Convention in Nashville.
At the same time, the IRS and Federal Election Commission, the regulatory agency that enforces campaign finance laws, have allowed these social welfare organizations to operate with near total impunity.
“The IRS’ attempts to police this class of nonprofits have almost completely broken down,” according to an investigation by ProPublica. “Since 2015, thousands of complaints have streamed in — from citizens, public interest groups, IRS agents, government officials and more — that C4s are abusing the rules. But the agency has not stripped a single organization of its tax-exempt status for breaking spending rules during that period.”
5·2 months ago