The Internal Revenue Service responded to the scandal over its targeting of conservative groups in 2011-12 by putting forth new rules that would suppress even more political speech. "The proposed changes, which were unveiled in late November, would classify much of the day-to-day activity of 501(c)(4) social-welfare groups, including voter education and registration, as political, thereby endangering their tax-exempt status," writes National Review's Eliana Johnson.
"They would also prohibit public communication 60 days before a general election or 30 days before a primary election that identifies a political candidate," seemingly in direct defiance of the U.S. Supreme Court's holding in Citizens United v. Federal Election Commission (2010) that such prohibitions are, in the words of Justice Anthony Kennedy, "classic examples of censorship."
Johnson writes that "sources and analysts" think the proposed rules "appear unlikely to be implemented in current form." One possible reason is that although censorship of political speech has long been a left-liberal cause, the IRS's proposals are drawing considerable opposition from the left. Johnson notes three examples:
The American Civil Liberties Union, itself a 501(c)(4) nonprofit, submitted a 29-page comment to the IRS "slamming the proposed regulations," in Johnson's words. "Social welfare organizations praise or criticize candidates for public office on the issues and they should be able to do so freely, without fear of losing or being denied tax-exempt status, even if doing so could influence a citizen's vote," the memo argued.
Nan Aron, who heads a left-liberal 501(c)(3) nonprofit called the Alliance for Justice, inveighed against the new rules in a piece for the website of The Nation: "The new regs will do almost nothing to fix the things you think are broken and may, in fact, do some real damage to the ability of everyday Americans to have an impact on the political process."
Exercising his constitutional rights. Getty Images
Most interestingly, according to Johnson, "the proposed regulations have a host of left-leaning groups worried that the 501(c)(4) rules could serve as a template for regulations governing 501(c)(5) nonprofits (unions) and 501(c)(6) groups (trade associations)." She quotes John Sullivan, general counsel to the Service Employees International Union (many of whose members work in the public sector) as telling the Washington Post that "the rule is so broadly phrased and so categorical," if applied to unions, "it would seriously affect their ability to function as membership organizations."
So if the entire nonprofit world opposes these rules, who supports them? "The move to rewrite the 501(c)(4) guidelines, which have remained unchanged since 1959, appears to have come at the behest of Democratic senators," Johnson reports. As early as 2010, Montana's Max Baucus, then chairman of the Finance Committee, was urging the IRS to apply greater scrutiny to nonprofits. (Baucus left the Senate this month to become ambassador to Beijing.) Michigan's Carl Levin was "complaining bitterly" about insufficient scrutiny, a former IRS commissioner told congressional investigators.
More recently, Sen. Chuck Schumer last month "proposed using the Internal Revenue Service to curtail Tea Party group funding during a speech on how to 'exploit' and 'weaken' the movement," as the Washington Free Beacon's Alana Goodman reported.
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