The federal District Court in Texas hearing the challenge to the constitutionality of the so-called “Johnson Amendment” that prohibits charities from participating in election campaigns has denied a request by Americans United for Separation of Church and State to intervene in the case.
The National Association of Religious Broadcasters, another nonprofit, and two Texas churches have petitioned the Court to approve a proposed settlement pursuant to which the Internal Revenue Service would not enforce the statutory prohibition against “bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services.” The proposed settlement compares such statements to “a family discussion concerning candidates” that does “not run afoul of the Johnson Amendment as properly interpreted.” (See Nonprofit Issues®, Vol. XXXV, No.4.)
The original complaint challenged the Johnson Amendment on constitutional grounds as applied to all section 501(c)(3) charities. The proposed settlement would limit its enforcement to the two churches involved, but would effectively make it almost impossible for the IRS to enforce the rule against any other church in the future.
The case attracted immediate attention when filed, with 17 organizations filing amicus briefs to persuade the Court toward their view. Americans United was permitted to file an amicus brief and was apparently the only group to seek to intervene. The plaintiffs and the IRS opposed the request for intervention.
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The Court discussed at length the rules on intervention. It found that Americans United had no “direct, substantial, legally protectable interest in the proceeding” which could make intervention a matter of right. On discretionary intervention, the Court recognized that Americans United “does have a generalized interest that the case [come] out a certain way. But that does not counsel strongly in favor of exercising the court’s discretion to allow intervention with full party rights —in which ‘the control of the original parties over their own lawsuit is significantly diminished’—as opposed to allowing AUSCS to participate in the case as amicus curiae.”
The Court stayed the proceedings in the case for 60 days to allow Americans United to appeal, and for the pendency of the appeal if an appeal is filed. (National Religious Broadcasters v. Bessent, E.D. TX, No. 6:24-cv-00311, 12/12/2025.)
YOU NEED TO KNOW
If you believe that significant issues of constitutional law should be determined by vigorous litigation in the American legal tradition, this is an unfortunate decision. It is great for the District Court because unless the judge decides to reject the proposed settlement, no one can appeal, he can’t be overruled, and his legal decision will be final. Constitutional law will have been determined by a single individual without review. When the IRS does not defend the legality of the law it is required to enforce, it suggests, in the colloquial, that “the fix is in.”
It reminds me of the Barnes Foundation case in the Philadelphia area in 2004 when the Barnes Foundation’s priceless art collection was allowed to move from suburban Merion to a downtown location on the Benjamin Franklin Parkway. The Barnes trustees petitioned the Court to permit the move and the Attorney General agreed. A group of Barnes’ students (the Foundation is exempt as an educational institution) was permitted to participate as amicus friends of the court, but they were not allowed to intervene as a party. They had no right to take discovery depositions to develop the facts of the situation and, more significantly, no right to appeal when the judge decided against them. Significant public interests were decided without review.
In the Johnson Amendment case, serious constitutional issues are likely to be decided without review. Since third parties do not have standing to challenge the exempt status of other organizations, no third party will be in a position to seek to enforce the Johnson Amendment (which will still be on the books) against any other church. The IRS will have changed a rule it doesn’t like by a simple agreement with churches who don’t like the rule. Churches and others who do like the rule they think is protecting them from political interference will have had no significant say.
The Court has discretion to allow intervention by someone who has a substantial interest in the outcome and no other way to litigate the issue. Limitations on intervention make sense where the parties will vigorously argue the issues, but not where they don’t even pretend to disagree. If we believe that the best results are achieved from vigorous debate and full judicial review, we should not arbitrarily and preemptively eliminate that debate when the issues arise.
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