The IRS' New Target: The First Amendment

Proposed rules governing political groups are surely unconstitutional.

Editorial cartoon on the IRS
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President Barack Obama can be forgiven for telling Fox News’ Bill O’Reilly that there wasn’t a “smidgen” of corruption involved in the Internal Revenue Service’s treatment of conservative groups applying for non-profit status in the months leading up to the 2012 election. By the Chicago ethical standards with which he is most familiar, all that was just business, nothing personal, and no one should take offense.

The Obama administration likes to do things “the Chicago way,” and then feigns ignorance when someone’s hand is caught in the proverbial cookie jar. South Carolina GOP Rep. Trey Gowdy said as much when, during a House Oversight and Government Reform subcommittee hearing looking into the scandal, he asked a panel of witnesses if they remembered “seeing a witness named Lois Lerner, sitting at the very table y’all are sitting at,” invoking her constitutional right not to incriminate herself.

“How can the president say there’s not a ‘smidgen’ of criminality when Lois Lerner” took the fifth, Gowdy asked the panel. “Forty-one witnesses haven’t been interviewed, including the two who are here right now!” he added. “How can (the president) possibly draw that conclusion?”

[See a collection of editorial cartoons on the IRS Scandal.]

It may be he can draw it because it’s the one he wants to draw. To people with Obama’s mindset, the people who oppose his policies are not merely wrong or misguided; they are malevolent, malefactors of wealth and privilege whose influence he must curtail and whose political activities he must bring to an end.

Obama’s on a mission to shut his political opponents down as best he can and he’s using the IRS to do it, an assertion supported not only by the scandalous harassment visited upon those opponents prior to the last national election but in heretofore secret emails recently brought to light by Michigan Rep. Dave Camp, chairman of the House Ways & Means Committee, while grilling new Obama IRS Chief John Koskinen at a hearing Wednesday.

According to Camp, the new rules the IRS is preparing to put in place to “correct” the abuses of the current scandal in fact do little more than write the harassment into the IRS code permanently by unconstitutionally infringing on the rights of certain non-profit groups to exercise their right to participate in the political process carved out for them, and everyone else, in the First Amendment to the U.S. Constitution.

Camp accused the IRS and the U.S Department of the Treasury of fabricating the rationale for the proposed rules change because the timeline now shows the new gag rules were being developed by the Obama administration well in advance of the organized harassment of so-called tea party groups applying for 501c(4) status under the internal revenue code.

[Check out our editorial cartoons on President Obama.]

“I want to be perfectly clear – this committee will fight any and all efforts to restrict the rights of groups to organize, speak-out and educate the public, just as unions are allowed to do so. We will get to the bottom of this, and I expect the IRS to produce – quickly – the outstanding documents the committee has requested,” Camp said, emphasizing again that the IRS has stonewalled congressional investigators. The administration’s own internal review, meanwhile, is reportedly being led by a major donor to the president’s campaign activities, raising the specter of a conflict of interest and leading most people to believe the inquiry will end in a whitewash despite Lerner’s having taken the fifth.

Senior congressional leaders, meanwhile, are continuing their call for the IRS to abandon the proposed new rules which, critics say, would “muzzle” the free speech rights of groups in the not-for-profit sector on the left and the right.

In a letter to Koskinen, the members expressed the view that “finalizing this proposed rule would make intimidation and harassment of the administration’s political opponents the official policy of the IRS and would allow the Obama administration to use your agency as a partisan tool.”

“This would be a serious error, especially in light of the recent track record of intimidation at the IRS. It would also cement your reputation as someone who is unable or unwilling to restore the public’s faith in this important agency,” the letter continued.  “One of the reasons you have been appointed to a five-year term is so that you will be protected from undue political pressure," the members of Congress said in the letter before going on to urge Koskinen “to take a stand against this kind of intimidation, abandon this proposed rule, and make it clear to a nervous public that your agency will no longer engage in government-sanctioned crackdowns on speech.”

At the same time groups that might be adversely affected continued their efforts to generate public comments to the IRS before the proposed gag rule can be finalized and put in place.

[See a collection of political cartoons on the tea party.]

Pointing out that, by law, all federal agencies are required to consider public comments on proposed rules and regulations before they are promulgated, the group American Commitment has created a web site, IRSPowerGrab.com, where persons opposed to the new regulations can make comments that will be filed with the agency.

“The proposed regulations would restrict groups from engaging in voter registration drives, candidate debates, voter guides, voting records and key votes. They would restrict any criticism of an incumbent federal, state, or local politician within 30 days of a primary or 60 days of a general election and effectively require groups to remove any reference to politicians from their websites during these windows. They even distort the definition of ‘candidate’ to include appointees, so groups weighing in on executive or judicial nominations would be restricted,” the group said on the site.

Indeed, the new rules are so far reaching and, because of their ambiguity, so potentially all-encompassing that, if imposed, they would constitute a serious infringement of individual rights under the First Amendment. The argument that groups with the particular tax status involved are abusing the privilege, are taking advantage of loopholes to employ so-called ark money to partisan ends, simply does not hold water. These groups are prohibited from engaging in partisan politics, not political activity. They are, left and right, concerned with the nation’s general welfare in order to “secure the blessing of liberty to ourselves and our posterity.” That’s a long held and noble effort going back as least as far as 1789. It would be a shame to see it come to an end in 2014 because a weak and thin-skinned president can’t take it as good as he and his allies dish it out. 


Corrected on Feb. 7, 2014: This post originally misidentified the committee hearing at which Gowdy made his remarks.