The Internal Revenue Service has overstepped its legal boundaries and expertise to assault the free speech rights of nonprofit advocacy groups, but the public can put the IRS in its place by commenting in the next few days, campaign finance experts and journalists assembled at The Heritage Foundation said.
The IRS’s proposed rule changes to reclassify town hall meetings, legislative scorecards and other regular activities of such groups as “political,” the panel agreed, threaten the groups’ tax-exempt status and thus their existence.
“This is a scandal as bad as they get,” panelist Kimberley Strassel of The Wall Street Journal said of IRS actions at one point. “This is an agency that has abused its power grievously against the American people.”
Speaking at the February 21 event, dubbed “Taxing the First Amendment,” were Cleta Mitchell, a lawyer representing conservative groups targeted by the IRS in a scandal that erupted last spring; Bradley A. Smith, former chairman of the Federal Election Commission and a law professor who heads the Center for Competitive Politics in Alexandria, Va.; and two journalists who have covered the unfolding IRS story — Eliana Johnson, media editor for National Review, and Strassel, a Washington-based columnist and editorial writer for The Journal.
Mitchell said the secretly developed rule changes would stifle the free speech of organizations across the political spectrum, from the Sierra Club on the left to the National Rifle Association on the right. Johnson noted, however, that “Republicans have more to lose” because 20 of the 28 advocacy groups that recently spent more than $1 million lean to the right.
“These people don’t want transparency,” Mitchell said of the administration officials behind the rule changes. “They want a target list.”
Mitchell and Smith urged the public to take a stand by registering their comments with the IRS through the Center for Competitive Politics’ website on the issue, NonProfitFreedom.org. More than 67,000 comments had been made as of Friday morning, but the deadline this Thursday, February 27, for comments is rapidly approaching because, Mitchell said, the new rules improperly “popped up” without prior notice near the Thanksgiving holiday.
Mitchell, partner at Foley & Lardner LLP, said the “sloppily drafted” regulations assail “basically all the things that are done to hold public officials accountable.” The rules would halt or severely limit the capability of 501(c)(4) nonprofits to invite certain speakers, publish voter guides, do get-out-the-vote drives, publish legislative scorecards, conduct grassroots lobbying and more, for fear of losing tax exemptions for the contributions of donors. Heritage’s sister organization, Heritage Action for America, is one such group.
The changes also would force the groups to surrender previously confidential donor information — which could deter citizens from participating in politically active nonprofits. The changes fall outside IRS expertise and authority because they are concerned with campaign finance law and have nothing to do with raising federal revenue, Smith said. “This is an effort to regulate campaign finance disguised as tax regulation,” he said.
The Supreme Court, Smith said, has ruled that campaign finance regulations cannot require disclosure of individual donor information unless the nonprofit organization in question expressly advocates a specific candidate. He said political operatives are attempting to get around the law by acquiring the details under the guise of tax status so that they can “harass and bother” donors.
Smith noted that the Federal Election Commission, the agency that oversees campaign finance, is structured with bipartisan safeguards, detailed enforcement processes and advisory components that the IRS lacks. The IRS, he said, is “not equipped to make these kinds of campaign decisions, and it’s not equipped to ensure the public confidence that these decisions aren’t being made simply for political gain.”
Strassel said she detected an overall culture of intimidation and suppression of free speech in the Obama administration behind the actions of IRS officials. The trend goes back to the 2008 presidential campaign, she said, when Obama aides filed complaints against organizations backing two Democratic primary opponents, Hillary Clinton and John Edwards. By 2010, she said, President Obama was regularly speaking in public about the danger of “shadowy right-wing groups.”
“Did the President make a telephone call to the IRS?” Strassel said of the IRS targeting scandal and the proposed rule changes. “He didn’t need a telephone call. He had a megaphone, and he went out and said this every day, and we know that the IRS was paying attention.”
National Review’s Johnson noted: “Perhaps with the outcries from right and left we can stop these regulations, or put an end to the targeting. But with political actors at the very top of every federal agency, these problems are very likely to happen in the future.”
The speakers were introduced by host Hans von Spakovsky, who has written about questionable actions by the IRS as a senior legal fellow at Heritage and manager of the think tank’s election reform initiative. Watch the entire event here.
This story was produced by The Foundry’s news team. Nothing here should be construed as necessarily reflecting the views of The Heritage Foundation.