The Johnson Amendment and the First Amendment

Over the past few weeks, I've read a lot about a bit in the tax bill before Congress having a provision that would repeal the "Johnson Amendment."  The most compact description of the Johnson Amendment* is that it tells certain organizations that they must, in effect, choose between having tax exempt status and being able to endorse or oppose publicly a candidate for public office.  Specifically, if says that certain organizations may be granted tax-exempt status is, in addition to meeting other requirements, the organization "...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."

Recently, some religious organizations have raised the issue of whether the Johnson Amendment is an unconstitutional infringement on the freedom of religion guaranteed under the First Amendment, or, alternatively, an infringement on the First Amendment's guarantee of freedom of speech.  (Most of the current discussion has involved religious organizations; why similar concerns are not raised on behalf of educational and charitable organizations that are not religious organizations (e.g., private schools) is unclear to me.)

What strikes me, though, is that the Johnson Amendment does not prohibit (say) the Catholic Church from taking a public position about political candidates.  It says, fairly explicitly, I think, that you can take such a position, but, if you do, you have to relinquish your tax exempt status.  Which entails, it seems to me, the following consequences:

1. Those organizations will be treated as businesses and, as a result, must file tax returns, with any "surplus" being treated as taxable income.

2.  Contributions to such organizations could no longer serve as deductions from taxable income by individuals, families, or other entities making contributions.

So there are tax implications both for the organizations and for their supporters.

Perhaps I'm missing something, but it seems to me that tax exempt status is a privilege, not a right.  I, for one, might  be perfectly willing to become a member of a religious organization and make contributions to it.  But that does not lead to a presumption that I agree with any political position taken by the organization.  As the law stands now, I don't need to worry about that, so long as I generally support the organization's actions and policies.**  Indeed, I could see that repealing the Johnson Amendment could lead to a wave of internal dissent within tax exempt organizations, as the members of those organizations grapple with the question of taking any particular political position. 

More concretely, the Johnson Amendment says, "If you want to endorse political candidates, you can't have this benefit.  But you can endorse all the candidates you want to--we won't stop you, feel free, but if you do, you play by the same tax rules as avowedly for-profit businesses do.  You pick."

*This amendment was proposed by Lyndon Johnson when he was a senator, and was adopted by Congress, as a part of the Internal Revenue Tax Code, in 1954.

**Oddly, there is currently a case being heard by the U.S. Supreme Court on a very closely related issue, which is whether public sector unions can charge non-members representation fees.  The plaintiff in that case argues that such representation fees violate his First Amendment rights.