Election law experts join in the denuniciation of IRS’s attempt to curb free speech

Scott and I have been writing about the IRS’s latest attempt to silence conservatives, this time through potentially crippling regulations on political advocacy groups (known as 501(c)(4) organizations). The period for commenting on the IRS’s proposed rules, which we discussed with some specificity here, is now closed. I understand that more than 120,000 comments have been filed.

The proposed rules don’t just adversely affect conservative groups. Many liberal groups would also be impacted. Conservatives, though, would bear most of the burden since most 501(c)(4) organizations advance conservative causes. Labor Unions, a major source of the left’s funding of political causes, are not encompassed by 501(c)(4).

This is sufficient reason for the left’s “generals” to want to restrict free speech through a general assault on 501(c)(4)s, but it’s of little consolation to leftist foot soldiers who carry out their operations through this vehicle. Accordingly, as Roll Call reports, environmental, civil rights, and even watchdog groups have joined conservative activists in assailing the proposed IRS rules as overbroad and chilling to free speech.

In addition, eight former members of the Federal Election Commission have filed comments opposing the proposed rules. The eight are: Lee Ann Elliott, Thomas Josefiak, David Mason, Don McGahn, Bradley Smith, Michael Toner, Hans von Spakovsky and Darryl Wold.

The former FEC members, whose combined experience on that body amounts to 55 years, stated:

The IRS lacks the statutory authority to restrict the political activity of 501(c)(4) tax-exempt organizations and makes a fundamental error in claiming that “the promotion of social welfare” does not encompass political speech and political activity, particularly when such activity is not connected to any particular candidate.

The changes proposed in the [rules] would undermine and interfere with the system of campaign finance laws and regulations established by Congress and the FEC, as well as confuse regulated entities. The proposed rules would also seriously undermine the First Amendment rights and protections of the Constitution for 501(c)(4) organizations and their members as outlined by the Supreme Court in Buckley v. Valeo and subsequent decisions, particularly the recent case of Citizens United v. FEC.

The former FEC members demonstrate that the proposed rules represent a grand-slam of lawless regulation of free speech. They (1) ignore Supreme Court precedent, (2) ignore key provisions of the Tax Code, (3) fail to provide clear guidance to the people being regulated, and (4) restrict and violate the First Amendment rights of Americans.

In addition, they attempt to regulate in an area beyond the IRS’s expertise and authority. They also use the tax code as a substitute for campaign finance regulation under the Federal Election Campaign Act and to get around Congress’s decision in recent years not to pass highly controversial campaign finance regulation.

We urge readers to call and write to Congress — both the House and the Senate — and demand action to stop the IRS’s proposed action. The number for the U.S. Capitol switchboard is 202-224-3121. The good folks who work the switchboard will put you right through.

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