The “October Surprise” this election cycle may come not from one of the presidential candidates, but from an unlikely source – the Internal Revenue Service. The ramifications of such a move are all bad, especially for conservative-oriented groups, and will reverberate far beyond any one candidate or political party. Whether the Congress has the backbone to head off this IRS attack on free speech is very much an open question; a spending restriction placed earlier on IRS funding is set to expire at the end of this Fiscal Year – September 30th – just in time for an October Surprise.
It is well-known that the IRS has long sought to silence or intimidate conservative-oriented organizations. Its effort in this regard is institutional and goes back several years, and was not shut down with the forced 2013 resignation of disgraced IRS director Lois Lerner. In fact, the powerful tax- and information-collecting agency now has its gunsights set not on a particular individual or organization, such as Citizens United, but rather on free speech as a whole.
According to the Tax Revolution Institute, a government watchdog organization that has been keeping a close eye on these First Amendment-violating efforts by the IRS, a proposed rule change to how certain non-profit organizations are classified, may very well be in the works for implementation this October.
The problematic rule, REG–134417–13, was first presented in 2013 and set parameters on how and when 501(c)(4) and other non-profit organizations could lawfully engage in election-related, informational and educational communications. The publication of the regulation came on the heels of the highly-publicized IRS scandal targeting conservative organizations, and faced strong and immediate pushback, including by the Congress. Now, three years later, and perhaps concluding that such focus on the IRS has diminished or will be overshadowed by presidential politics, the Service appears ready to strike again.
Should the new rule look anything like what has been proposed previously, with one stroke of the pen the IRS would be able to reclassify heretofore clearly protected political speech as prohibited “electioneering.” A communication doing nothing more than mentioning the name of or position sought by a candidate – or simply showing their picture — before a primary or general election, would be sufficient to bring the power of the IRS down on that offending organization. Also at stake is the donor privacy of those organizations.
In typical government Double Speak, the IRS justifies the rule change as necessary to help protectthe “sanctity of elections.” In reality, and based on the past history of not just the IRS but other federal agencies as well, including the Federal Election Commission, it is easy to discern the true motive of such a proposal: silencing conservative critics of incumbent office holders and candidates.
Furthermore, it is no coincidence that the possible rule-change comes while Democrats on the Federal Election Commission attempt to silence conservative websites like the Drudge Report; and as Democrats such as Hillary Clinton and Bernie Sanders continue to campaign vocally on overturning Citizens United. It is all a part of the Left’s proxy war on conservative speech, which has flourished with the rise of New Media. The Left cheers when liberal non-profit and for-profit entities pillory Republicans on issues such as gay rights and gun control. However, when it comes to conservative organizations doing the same to individuals supported by the Left, it becomes an issue about the “corrupting influence” of money in politics; which makes the motivations for the IRS rule changes so transparent.
In recent years, the Right has dominated when it comes to establishing effective 501(c)(4) organizations, and the Left will stop at nothing to see such conservative audacity silenced. But, rather than having to admit their true intentions during debate in Congress, Democrats hope to sidestep this nuisance by employing the same regulatory schemes long-favored by President Obama to undermine gun rights, which in their view do not require congressional approval.
Make no mistake – this constitutes a battle for the soul of the First Amendment to our Constitution. Congress has it within its power to once again stymie this move by the IRS, through an appropriations “rider” as it did previously, or by defining “political advocacy” in a common-sense way so that the IRS is no longer able to undercut this most cherished and constitutionally protected right. We can only hope congressional Republican leaders will find the backbone to head off this devastating October Surprise.
The Moral Liberal Contributing Editor, Bob Barr, represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.