Any lingering doubts that President Obama has no interest in stopping political targeting by the IRS of conservative, Tea Party and evangelical nonprofit advocacy groups were obliterated by the Nov. 26 announcement that the federal tax agency is moving to suffocate political speech on a much wider scale. The tools for this expanded effort are proposed rules implementing detailed regulation of the activities of 501(c)(4) advocacy groups by the same IRS bureaucrats who for three years have been harassing political groups on the Right. The ghosts of presidents John Adams and Woodrow Wilson -- enforcers, respectively, of the Alien and Sedition Acts of 1798 and the Sedition Act of 1918 -- must be dancing in the White House.
As bad as both of those disreputable laws were -- dozens of people, including journalists, went to jail because of them -- what Obama and the IRS are doing today is far more dangerous. That is because, whereas the previous outrages against the First Amendment and political speech at least had the imprimatur of Congressional majorities that approved them, the proposed IRS rules now being considered will erect a web of regulations that neither Congress nor the Supreme Court would likely approve. Laws can be repealed, but, short of congressional defunding, it is all but impossible to force federal bureaucrats to pull back from regulations that justify their jobs.
Former FEC Commissioner Bradley Smith penned a searing article Dec. 9 on the Wall Street Journal's opinion pages that ought to be required reading for every member of Congress. Among much else, Smith -- who is now chairman of the Center for Competitive Politics -- pointed to three myths underlying the proposed IRS rules.
First, 501(c)(4)s are not “charities,” as they are frequently described by journalists; they are recognized as advocacy groups. The Salvation Army is a charity, the NRA is an advocacy group. Charities are explicitly barred from political advocacy. Advocacy groups aren't.
Second, there is nothing in the long-standing IRS regulation requiring advocacy groups to operate on behalf of “social welfare” that precludes activities that would be banned by the proposed new rule. As Smith put it, “Since when, in a democratic society, are nonpartisan get-out-the-vote drives, voter registration, voter education, and meet-the-candidates nights — all of which will be limited by the IRS's proposed rules — not activities in support of social welfare?”
Third, the endlessly repeated claim on the Left that advocacy groups “shouldn’t get tax breaks” is baseless. Contributions to 501(c)(4)s aren’t tax deductible.
Supporters of the IRS proposal claim it is needed to stop wealthy individuals like the Koch Brothers from using “dark money” -- i.e., money from anonymous sources -- to fund political advocacy. But the Supreme Court recognized in its 1957 decision upholding the NAACP's right to keep its donors' names from state officials because the justices understood the threat of official retaliation is often enough to silence dissent. Obama's IRS seems determined to prove the high court's wisdom.