More than 120,000 Americans have submitted comments to the IRS concerning its latest proposal to restrict 501(C)(4) non-profit social welfare organizations. That total may be the most generated by a proposed IRS rule since President Carter was in the White House and the tax agency considered a proposal to impose unreasonable restrictions on Christian schools. That proposed IRS rule shook millions of evangelical Protestants out of their decades-long hibernation from participating in the political process. The surge of new recruits to the conservative cause that followed was a major factor in President Reagan's 1980 election.
It is important to understand that the present IRS proposal was being developed secretly even before the public learned in 2013 that the agency had systematically targeted and harassed hundreds of Tea Party, conservative and evangelical groups seeking non-profit status in the 2010 and 2012 election campaigns.
|The proposed rule is so broad and vague that it will undoubtedly generate endless litigation and regulatory confusion.|
It is also important to note that the IRS proposal hinges on its attempt to impose a new definition of permissible political activities in place of the one it has been using for 53 years. The current definition says C4 social welfare nonprofits are not allowed to have as their major activities “participation or intervention in behalf of or in opposition to any candidate for public office.” The IRS wants to replace that definition with a bar on “direct or indirect candidate-related activity” as a social welfare non-profit’s primary activity.
The IRS claims there is confusion within itself and the general public about these matters, but in fact the agency has operated effectively for more than half a century using the current definition, which clearly says campaigning for or against a candidate is barred. The proposed definition is so broad and vague that it will undoubtedly generate endless litigation and regulatory confusion. That, the American Civil Liberties Union noted in its comment to the IRS, will “discourage or sterilize an enormous amount of political discourse in America.”
To cite just one example, “under the National Voter Registration Act (also popularly known as the motor voter law') states may designate nongovernmental offices,' including nonprofit organizations, as voter-registration agencies,' ” according to Judicial Watch in its comment to the IRS. The new definition would bar social welfare organizations from being voter registration agencies even though Congress specifically intended that they be able to provide such services. “This conflict further demonstrates that the proposed regulations are unreasonable and therefore not entitled to deference,” according to Judicial Watch.
This is a significant conflict because nonpartisan voter education and registration drives have long been recognized by Congress and the IRS as permissible activities for nonprofit social welfare organizations. As Judicial Watch reminds the IRS, it “has recognized that long-standing regulations left unchanged by Congress can have the effect of law.' ” Not coincidentally, True the Vote, a Texas-based group that provides voter registration education and training, is among the hundreds of conservative groups targeted by the IRS. As the Alliance for Justice's Nan Aron said, the IRS has drawn “a very deep and troubling line in the sand.”