I was brainstorming who might have standing to see to bring such a suit. If a religious organization is directly supporting a political candidate's rival, would that grant standing to bring a suit?
If so, would it even matter, or would the courts say "Sure, you have standing, but this is a discretionary enforcement matter so you can't get an order to enforce it?"
If you plan to sue, you have to identify a legally cognizable injury in the complaint. So I guess you are asking us to first devise a plausible injury to the candidate coming from the IRS action, and then see if that really gives them standing. At the outset, it is also important to fix on a reason why tax exempt status was not revoked (there is a separate law, the Church Audit Procedures Act about enforcing the Johnson provisions, see Branch Ministries v. Rossotti), i.e. was there a complaint, was it investigated... did the IRS say "Yep, a violation, but we don't care"?
The case Allen v. Wright, 468 U.S. 737 is relevant to this attempt. Racially-discriminatory private schools are not eligible for tax exemptions granted by the IRS: plaintiffs alleged that IRS procedures for vetting applicants on this ground were insufficient. The Supreme Court held that plaintiffs did not have standing to bring this lawsuit. The harms alleged in the suit are summarized as follows
First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.
These harms are analogous to ones that might be raised in your scenario. The alleged harms in the case were not well-enough explained that the court had to do a lot of conjecturing to decide whether there was cognizable harm. It was observed that
This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court
with various citations ("Ex parte Levitt, 302 U.S. 633 (1937). Respondents here have no standing to complain simply that their Government is violating the law"). You can't just sue the government because it isn't enforcing the law.
The problem is that the candidate is not obviously harmed by the Government giving tax relief to a third party. A suggestion is made in the opinion as to how such an argument might be sustainable:
The diminished ability of respondents' children to receive a desegregated education would be fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities for withdrawal of those exemptions to make an appreciable difference in public school integration.
Plaintiffs did not make any such argument.
We would need to identify a right of the plaintiff-candidate which was trod upon by the government, in not withdrawing tax-exempt status of a third party, one who exercised their First Amendment right to express support for or against a political candidate. Whereas in the education case there is a clear right (the right to receive an education irrespective of race), there is no "right to be elected", there is at best a "right to run for office" and not a "right to win". Taxing the ministry is not likely to enable a candidate's "right to win".
You are right to focus on standing and discretion. Historically, there was also a sovereign immunity issue. I believe the canadidate you describe would get around the standing problem. Sovereign immunity has been waived for large swaths of IRS action.
These three barriers (standing, sovereign immunity, mandamus not being applicable to discretionary decisions) are discussed extensively in in Howard W. Brill, "The Citizen's Relief Against Inactive Federal Officials: Case Studies in Mandamus, Actions 'In the Nature of Mandamus', and Mandatory Injunctions" (1983) Akron Law Review.
But the writ of mandamus is simply not available to compel discretionary action (Brill, p. 348). Brill quotes from Work v. United States ex rel. Rives, 267 US 175 (1925) to describe the nature of mandamus:
The IRS also summarizes the availability of mandamus:
... relief in the nature of mandamus is not available:
- to compel the performance of a discretionary (as opposed to a ministerial) act or the manner in which a discretionary act is to be performed
Regarding the Johnson Amendement, the choice to investigate/audit and then the decision about whether and how to punish all seem to be discretionary action in its purest form. Others have also characterized enforcement of the Johnson Amendment as discretionary (Marty Lederman refering to "enforcement discretion"; Julie Zauzmer and Sarah Pulliam Bailey of the Washington Post calling this "law enforcement discretion").
