BY ROBERT ROMANO | DECEMBER 4, 2013
Obama expands war on political speech
There is one mystery that has perplexed political observers after Senate Democrats decided to violate Senate rules allowing the minority party to block presidential appointments. And that was why it was so important to do so to help Patricia Ann Millett to get confirmed to the D.C. Circuit Court of Appeals.
A cynic might want to take look at a new Internal Revenue Service (IRS) regulation severely restricting political activity of 501(c)4 organizations that was dropped the day after Thanksgiving.
After all, when this regulation is challenged — and it will be — that is the court where the case will invariably wind up, which handles cases involving federal regulations.
As for the regulation itself, not content with merely targeting tea party and other 501(c)4 organizations that engage in various types of political activity on an ad-hoc basis, the Obama administration via the Treasury Department has come out with a far more uniform approach to stifling (c)4 political speech.
Never mind that the law itself only explicitly prohibits 501(c)(3) charities from engaging in political activity, but not (c)(4) social welfare groups. In fact, it was the regulation that put a limitation in place. The 1960 regulation implementing 501(c)(4) states, "The promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office."
It also further defines what social welfare means under the law: "An organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community."
Under existing rules, an organization may carry on electioneering activities so long as it does not constitute a majority of its activities. But, no longer.
Now, limitations will be imposed not simply on advocacy for or against a candidate for public office, as has been the case for over 50 years, but on any communication that even mentions a public official who happens to be a candidate. Specifically, the regulations will define "certain communications that are close in time to an election and that refer to a clearly identified candidate as electioneering communications."
It applies blackout periods 60 days prior to the general election and 30 days prior to primary elections at the federal, state, and local level.
But as Americans for Limited Government President Nathan Mehrens notes, this will not apply to 501(c)5 labor unions and (c)6 trade associations: "the proposed regulation does not apply to labor organizations, although the proposal states that the Administration is considering a regulation in this area. Thus, a likely result is that a final rule will be promulgated further restricting non-profit speech and activities long before any comparable regulation is promulgated on the activities of labor organizations."
Mehrens summarized, "The net result will be more restrictions on the rights of conservative leaning organizations while the same restrictions on left leaning labor organizations remain unfinished."
Adding ambiguity to how the regulations might be implemented, the IRS will no longer merely consider the costs of communications in determining eligibility for the 501(c)4 tax status. It will use a far more subjective, content-based standard: "the expansion of the types of communications covered in the proposed regulations reflects the fact that an organization's tax exempt status is determined based on all of its activities, even low cost and volunteer activities, not just its large expenditures."
And, the icing on the cake, "The Treasury Department and the IRS intend that content previously posted by an organization on its Web site that clearly identifies a candidate and remains on the Web site during the specified pre-election period would be treated as candidate-related political activity."
Can you say ex post facto?
To give readers an idea of the broad implication of this regulation, Americans for Limited Government is a 501(c)4 organization whose websites have content dating back to 2008.
Understandably under prior rules allowing it we have written extensively about public officials, including members of Congress, who also happen to be candidates that run for office every two years.
Thousands of articles, in fact — nearly all of them mention public officials (who are usually running for reelection) or reference legislation or policies they support.
These are not electioneering communications. They do not advocate for or against the election of candidates — a constitutionally protected activity, but let's leave that aside for a moment — they supported or criticized policies being proposed in the public arena.
But because the articles mention officials who happen to be candidates, and because primary elections occur at various intervals throughout election years, and because it is impossible to decipher by what standard the agency will determine to what degree actions are "candidate-related political activity," complying with the new regulation might make it impossible for Americans for Limited Government to continue in its current form.
It is possible we would have to either shut down our website or go article by article to remove ones that mentioned public officials who happen to be running for reelection. Or redact the names of any officials who might be running for office and replace the names with black rectangles.
We publish lots of cartoons, too. We might have to go back and black out the faces of any officials who appear that also happen to be running for office. Then there's all of those Youtube videos we made that mention officials who happen to run for reelection at regular intervals. Can't forget those.
We might even have to remove any hyperlinks to roll call votes alerting the American people how their elected representatives voted on critical issues, since those links would include the names of candidates too. Or also links to any other news articles that might mention candidates. You know, just to be thorough.
Because primaries occur throughout federal election years, the blackout could apply through the better parts of 2014 and 2016. But don't forget Virginia and New Jersey, which have state elections in federal off years (i.e. 2013, 2015, etc.), and we've written about issues concerning public officials there, too. Don't want to go through all the trouble of redacting federal, state and local officials in 2014 and 2016, and not remember to remove Virginia and New Jersey ones for 2013 and 2015.
During all of those years, it is possible that to comply we'd have to shut down much of our communications since they so often reference government, if not elections.
That is, to keep 501(c)4 tax status, and not be classified as, say, a 527 political action committee. Both are tax-exempt entities, but with one critical difference: 527s have to disclose donations to the Federal Election Commission, and 501(c)4s do not.
And therein we get to the true intent of the new IRS regulation, which is to achieve via regulation what Congress could not when the DISCLOSE Act was defeated in 2010. The Obama administration is hell-bent on regulating critics of the administration out of existence by threatening to expose organizations' membership lists.
Never mind what the Supreme Court stated clearly in NAACP v. Alabama (1958). Then Justice John Marshall Harlan's majority opinion stated, applying the First Amendment via the Fourteenth to Alabama, "We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment."
Should the regulation go into effect in 2014, considering that it took about two years for federal courts to litigate the Citizens United decision, the blackout periods could be in effect through the entire 2016 election cycle.
Before it comes to this, the Supreme Court upon finalization of the rule will need to be petitioned and stay all implementation of the regulation in order to protect the First Amendment rights of citizens of all political stripes. To allow these regulations to govern speech during the next few cycles without full court scrutiny would be a grave disservice that the Supreme Court can and should stop.
Robert Romano is the senior editor of Americans for Limited Government.