The Treasury Inspector General for Tax Administration reports that Internal Revenue Service employees began using "inappropriate criteria" in 2010 when considering the applications of Tea Party organizations for 501(c)(4) tax exempt status. This included subjecting groups with "Tea Party," "Patriots," or "9/12" in their titles to such "unnecessary information requests" as the political affiliations of the groups' officers and employment information.
These requests caused long delays in the IRS approval process, which prevented many conservative groups from functioning since 2010. This red tape amounted to censorship, and thankfully the scandal is getting the attention it deserves. But instead of trying to fix the law, some politicians would employ the scandal as an excuse to impose more burdens on political speech.
Many-including President Obama-have unequivocally condemned the IRS targeting, and promise to ensure it never happens again. For others, the condemnation comes with qualifications. 501(c)(4) organizations must engage primarily in "social welfare" and not political campaigning. Law professor Jessica Levinson, citing Justice Scalia, compares making this determination to drawing "a line . . . in the sand on a windy day."
So, as the refrain goes, it's understandable that IRS employees couldn't shoot straight.
Instead of simply urging Congress to clarify the law, these reformers want every organization with political opinions to file lengthy reports to various government agencies. Some are urging the IRS to only grant (c)(4) status to groups engaged "exclusively" in social welfare rather than "primarily," the current standard under IRS regulations.
This will only be more problematic. Talking heads like MSNBC's Lawrence O'Donnell bloviate that many Tea Party groups (and similar groups on the left like the President's Organizing for America) are not social welfare organizations. However, these critics provide no definition of "social welfare."
Discussion of topics such as the U.S. Constitution and taxation (missions that also summoned IRS targeting) can have large benefits for civil society, even though these issues have political ramifications. Similarly, groups that take positions on everything from food stamps to endangered species will often criticize or praise the positions that politicians take on such issues.
This does not mean that these groups are not social welfare organizations and must keep meticulous records for the government. Again, no one provides us a satisfactory definition, but I believe it would be extraordinarily hard, if not impossible, for any 501(c)(4) to engage "exclusively" in social welfare as these pundits see it.
Some, such as Steven Rattner at the New York Times Opinionator blog, pin the blame on campaign finance law. They say if the Federal Election Commission would only make invasive inquiries of every political speaker, the IRS would not need to worry about it.
But the FEC has long been constrained from doing this by the Supreme Court, which recognized in the 1970s that criticizing candidates for office is not necessarily political campaigning.
Nevertheless, expanding the FEC's regulatory reach only further exposes the dangers of red tape.
The Wyoming Liberty Group recently argued the appeal in a case for three Wyomingites who wanted to discuss the positions of federal candidates on health care, gun control, ranching and other issues in advertisements last year. The FEC's attorneys claim that this small group-which had about $2,000 and aimed to raise up to $40,000-is a "Super PAC" subject to regular reporting with the agency until it decides reporting is no longer necessary. The same vagueness that would permeate an "exclusively social welfare" standard already plagues the FEC's standards for "express advocacy" regarding a candidate's election, and the "major purpose" of an organization.
The solution to targeting is not to impose red tape on every group of citizens that expresses political opinions. The federal government must re-examine the First Amendment and realize it has no place passing or enforcing laws "abridging the freedom of speech." Money contributed to politicians should be regulated and large amounts disclosed; money spent on messages that criticize or praise a candidate for his or her position on a certain issue should not. Only then, free from red tape, will grassroots groups of all political stripes be able to meaningfully participate in the American experiment once again.
