How Lawmakers Stopped Part of Obama’s Assault on First Amendment
This column by ACRU Policy Board member Hans von Spakovsky was published January 5, 2016 by The Daily Signal.
There is no question that the omnibus appropriations bill that Congress passed just before its holiday recess is full of wasteful spending. Even worse, it completely funds Obama’s unilateral, above-the-law executive actions in almost every area, from his immigration amnesty program to his overregulation of power plants.
However, there is one area where Congress acted through the omnibus (and tax extenders bill) to stop part of the administration’s assault on the First Amendment.
The Proposed IRS Rule
At the end of 2013, the IRS proposed a new, restrictive regulation to change its definition of “campaign-related political activity” by nonprofit 501(c)(4) advocacy organizations like the NRA (National Rifle Association) and various Tea Party groups.
The overbroad rule would have seriously undermined the First Amendment rights of these organizations and their members and interfered with the regulation of candidate activity by the Federal Election Commission —- the agency tasked by Congress with that responsibility.
The proposed rule was, in essence, an effort to legalize what Lois Lerner had done —- targeting conservative advocacy organizations for their beliefs, opinions, and views by systematically harassing them and their donors with voluminous information requests and delays in granting their tax-exempt status.
This proposed regulation got more public comments than any IRS proposal in recent memory —- the vast majority of which were opposed to the new regulation.
In a win for free speech, Section 127 of the omnibus prohibits the use of any funds by the IRS to issue any such regulation, including specifically the proposed regulation that the IRS published on Nov. 29, 2013.
Obama Administration Tried to Use SEC to Regulate Donations
But the administration and its allies, who want to restrict political speech and political activity, weren’t content with trying to use only the IRS to do that. They also went to the Securities and Exchange Commission (SEC) to badger it into issuing regulations requiring corporations to report all of their donations to non-profit organizations and trade associations, as well as political contributions. Such disclosure has nothing to do with furthering the responsibilities of the SEC, whose mission is to “maintain fair, orderly, and efficient markets.”
They were really intended to facilitate the ability of critics to harass, intimidate, and pressure companies to terminate their contributions to advocacy organizations the critics don’t like.
Just take a look at how liberals harassed and boycotted corporations that had contributed to the American Legislative Exchange Council, an organization representing state legislators from all over the country, because of its work on just one issue: voter ID.
Fortunately, the omnibus has a provision (Section 707) that prohibits the use of any funds by the SEC to issue any rule or regulation “regarding the disclosure of political contributions, contributions to tax exempt organizations, or dues paid to trade associations.”
To forestall another proposal along these lines by the Obama administration, which first surfaced in 2011, the omnibus (Sec. 735) also prevents federal funds from being used to force any entity making a bid on a government contract to disclose contributions “to a candidate for election for Federal office or to a political committee” made by the bidding entity or its officers or directors.
Allowing Bureaucratic Abuse of Power
Requiring such disclosure would make it easier for federal bureaucrats to take into account political contributions when awarding contracts. It would also force bidders to delve into the personal political activities of their officers and directors. This would require them to report political contributions those employees have made, not out of corporate funds (which is illegal), but out of their personal funds.
In addition to these prohibitions on forced disclosure, there are also provisions in the tax extenders bill to deter IRS bureaucrats from repeating Lois Lerner’s behavior or hiding their wrongdoing from discovery by using personal emails.
Sec. 402 prohibits any “officer or employee of the Internal Revenue Service” from using “a personal email account to conduct any official business of the Government.”
Sec. 407 requires the termination of any IRS employee for “performing, delaying, or failing to perform (or threatening to perform, delay, or fail to perform) any official action (including any audit) with respect to a taxpayer for … a political purpose.”
Finally, Sec. 406 gives all tax-exempt 501(c) organizations like the many Tea Party groups the right to challenge any denial of their tax-exempt status by the IRS in federal court. Before this bill became law, only charitable organizations qualified under Sec. 501(c)(3) could appeal such a decision by seeking a declaratory judgment that the IRS was wrong.
Preventing IRS Abuse
Taking action to forestall the IRS from abusing ordinary Americans for speaking out either by themselves or through membership organizations that share their views is essential to protecting Americans’ First Amendment rights.
Forcing Americans to report to the government whom they donate money to, and what organizations they are members of, chills speech, diminishes free expression, and reduces advocacy and speech about many important issues —- political, cultural, and otherwise.
But then, that is the goal of many who have been pushing this agenda at the IRS and the SEC —- they want to silence the voices they don’t like and don’t agree with.
Clearly, the omnibus and tax extenders bills were in many ways pork- and special tax break-laden monstrosities that are all too typical of how Congress has operated for far too long. But there were some pearls in the usual government swill intended to protect our First Amendment liberties.