The newly proposed IRS rule governing the free speech of non-profit social welfare groups “will produce the same structural issues at the IRS that led to the use of inappropriate criteria in the selection of various charitable and social welfare groups for undue scrutiny.”
That’s not a quote from the ACLJ or Representatives Darrell Issa or Dave Camp (who are leading the congressional investigations into the IRS targeting scandal), nor is it the scathing analysis from the cable news channel President Obama loves to hate, Fox News.
It is the searing retort of none other than the American Civil Liberties Union (ACLU). And they are not alone as more and more groups on the Left slowly but surely start to admit that the IRS, at the very least, went too far in its new rules.
The new rules are clearly an attempt to legitimize the targeting of conservative groups, giving color of law to the Obama Administration’s mission to silence conservative viewpoints in the social welfare arena. Even the ACLU reluctantly admits this is the case. But they also wisely see that they too would be caught up in this overly broad dragnet approach the Administration repeatedly employs.
As it stands now, 501(c)(4) organizations, or social welfare groups, are allowed to operate tax free, as long as their primary purpose is to advance social welfare and is not political (to the IRS anything remotely political cannot possibly promote social welfare). Thus, as long as less than 50% of what you do falls under the “political” heading as defined by the IRS, you are compliant with the law.
The newly proposed IRS rules would drastically change the definition of “political.” In fact, the change is so drastic that the definition itself constantly changes what is and isn’t “political” – and thus somehow no longer promoting “social welfare” – throughout the course of the year. For example, as the Wall Street Journal aptly synthesizes:
Under the draft rule, the IRS would recategorize a broad swath of nonprofit actions as political, including any public communication that identifies a candidate within 30 days of a primary election or 60 days of a general election. The rule would also count any communication, public or private, as political if it expresses "a view on, whether for or against, the selection, nomination, election, or appointment of one or more clearly identified candidates or of candidates of a political party."
Assuming that in most election years there is at least one primary and general election, a non-profit organization would be effectively silenced from performing core aspects of its mission for 25% of the year. And in cases where the Democrat and Republican primary are on different days or there is more than one general election – maybe even a special election – that number could approach 50% of the year.
In fact, as the WSJ correctly notes, “Even laws that are colloquially referred to by the names of their sponsors, like ObamaCare or McCain-Feingold, could also be counted as ‘political’ activity for a 501(c)(4) that mentions them or their policies.”
If you think about it, government, especially the federal government, has expanded into so much of our lives that what is there left to talk about that doesn’t impinge on some area of life regulated by government, some area that a politician is seeking to expand or contract that regulation?
That’s right the Obama Administration (whoops, see what I did there; I mentioned the name of the President; if this were his first term, he’d be considered a candidate) has proposed campaign finance regulation masquerading as an IRS rule that would effectively chill free speech.
Moreover the IRS is wholly incapable and unsuited to govern campaign finance, even if it were a good rule. The primary purpose of the IRS is revenue collection, not campaign finance reform. Yet, this Administration has chosen the IRS as its implementation method of choice to tamp down dissenting speech once again.
Thankfully, this time some groups on the Left are starting to see just how invasive and damaging to free speech (everyone’s free speech) this proposed rule would be. Liberal groups like the ACLU, the Sierra Club, the Alliance for Justice are taking the same position that we have taken since the very day these regulations were proposed.
At the ACLJ, in addition to representing 41 conservative groups who were initially targeted in a lawsuit against the IRS, we are preparing to submit official comments later this week outlining in detail the grave violation of free speech these proposed rules represent.
Like we did last week (shutting down the FCC’s newsroom monitoring program), it’s time to once again stand up for the First Amendment against the Obama Administration’s overreach. Sign our petition today.
Matthew Clark is Associate Counsel for Government Affairs and Media Advocacy with the ACLJ. A lifelong citizen of the Commonwealth of Virginia, he lives with his wife and three boys in Northern Virginia. Follow Matthew Clark: @_MatthewClark.