They also would eliminate communications before elections that name candidates, even if done in a neutral fashion.
The IRS claims its proposed regulations are designed to create “a more uniform set of rules” for social welfare organizations, notwithstanding the long precedent of these types of communications. Censorship is now deemed appropriate tax policy.
Coming after its high-profile imbroglio targeting and harassing the Tea Party and other conservative applicants for 501(c)(4) status, the proposed rules would violate the free speech rights of all social welfare organizations, prompting opposition from the Left and Right.
The IRS apparently wants to show that its violations of the First Amendment are bipartisan. Among the 143,000-plus comments, groups distinctly not conservative such as the ACLU, the NAACP and Independent Sector -- an umbrella group for many large charities -- opposed the IRS's proposed censorship.
The IRS claims that "social welfare" does not include “candidate-related political activity.” If this were not such a serious attack on free speech, one could joke that the IRS and about 87 percent of Americans, based on dismal approval ratings for Congress, agree that elected officials don't act for our welfare.
These rules, however, go far beyond targeting big money used to elect candidates, and affect the smallest and poorest organizations active at state and local levels. The rules cut to the heart of citizen participation in the legislative and political processes.
The IRS regs target speech on the Internet, and speech on the Internet is permanent. With this threat of censorship hanging over their heads, nonprofit organizations will surely hedge on their communications going into this 2014 election cycle. Voters lose because they will not receive a variety of information and opinions to inform their votes.
The IRS under President Obama has trended from merely an intimidating tax collector to an outright lawbreaker.
A Treasury Department inspector general found evidence of criminal conduct at the IRS in its treatment of conservative donors, whose confidential tax information was disclosed in clear violation of the law. Attorney General Eric Holder has said his Justice Department will not prosecute anyone.
Lois Lerner, former head of the tax-exempt unit at the IRS, twice invoked the Fifth Amendment to block her testimony before a Congressional committee investigating IRS lawlessness in its tax-exempt application process. That congressional committee is now developing contempt charges against Lerner.
Mark Meckler, one of the original Tea Party Patriots organizers, formed an organization called Citizens for Self-Governance. Its most recent project is called “Sue the IRS.”
Meckler and his co-plaintiffs seek punitive damages from the IRS for its illegal treatment of conservative organizations. Given the way the IRS has acted, this could be a growth industry.
Nowhere in the IRS’ proposed regulations does it express concern that it may be violating the First Amendment, nor that tax policy, needing clarity, should avoid censorship.
Despite the long use of the communications to be censored, Congress did not act to prevent them. The IRS, like Obama, doesn’t believe it needs to wait for Congress to act, and is exceeding its legal authority.
The Constitution, by its very terms, is our supreme law. Founder and our fourth Supreme Court Chief Justice, John Marshall, called it our “fundamental and paramount law.”
The IRS' proposed rules would violate the Constitution. They restrict not only all 501(c)(4) organizations, but tens of millions of Americans, who would be the secondary victims of this censorship.
The IRS' illegal conduct has a scope and breadth that is unsurpassed, making it the biggest lawbreaker in the nonprofit arena.Mark J. Fitzgibbons is co-author with Richard Viguerie of "The law that governs government."