The IRS v. the First Amendment

Whatever happened to "Congress shall make no law"?


Of all the discouraging news in the scandal involving President Obama's Internal Revenue Service, the most illuminating is that one of the things that triggered additional scrutiny from the IRS for groups applying for tax-exempt status was any plan for "educating on the constitution and bill of rights."

As the details of the situation have emerged, various explanations have arisen for the behavior of the IRS officials involved. A 2,700-word report issued over the weekend by a team of seven New York Times journalists attributed the problem to "an understaffed Cincinnati outpost that was alienated from the broader I.R.S. culture."

A more straightforward explanation is that, rather than being culturally alienated, the IRS officials, and their bosses, right up to and including the president, were genuinely afraid of what Americans might find out if they did actually have a careful look at the Constitution and the Bill of Rights.

The most potentially devastating development would be if people read the First Amendment. That says "Congress shall make no law…abridging the freedom of speech…or the right of people peaceably to assemble, and the petition the government for the redress of grievances."

The First Amendment doesn't say "Congress shall make no law so long as you apply to the IRS and register under section 501(c)4 of the Internal Revenue Code, but if your 'major purpose' under the Federal Election Commission's regulation is politics, you have to register with the FEC and disclose your donors, and if you are a lobbyist, you have to register and disclose your clients."

The First Amendment doesn't say that if a person wants to exercise the rights of speech, assembly, or petition, the person should have to wait months for IRS approval and spend all kinds of money on lawyers and accountants who have expertise in navigating these shoals. It doesn't say there's a higher bar for Tea Party groups, or that those groups have to wait longer or supply more information.

What the First Amendment does say is pretty plain: "Congress shall make no law…"

The rest of the document is pretty clear, too. The powers of the Congress and of the President are enumerated. Nowhere among those enumerated powers is the power to demand that individuals disclose their donors, their plans to run for elective office, or their social media posts as a condition of exercising their rights to speech, assembly or petition. And the Ninth Amendment makes clear that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, if people read the Constitution and the Bill of Rights, they might realize that the entire elaborate regulatory apparatus that politicians and bureaucrats have erected to limit these rights of speech, assembly, and petition rests on constitutional ice that is thin-to-nonexistent. The response from the "campaign finance reform" crowd is that it's not speech, assembly, or petition that is being regulated, but money, and that there's a legitimate government interest in regulating money to prevent corruption. A Supreme Court majority has agreed with that argument up to a point, but only up to a point.

There's a case to be made that a way to fix all this would be to get rid of both the corporate income tax and the charitable giving tax deduction. That way there'd be no need for the IRS to pass judgment on which corporations are taxable and which are tax exempt, and on which of the tax-exempt ones get to have their donors qualify for the charitable deduction.

But an even more basic fix is education on the Constitution and the Bill of Rights, so that people have a crystal clear understanding of their rights to speech, assembly, and petition for redress, and of how those rights are not subject to abridgment by Congress. That understanding, sadly, is what the IRS under President Obama seems to have been determined to prevent. And if there's a positive aspect of the IRS scandal, it's that it turns out that despite the IRS, enough Americans already have a robust understanding of the First Amendment that they met the IRS's behavior with the outrage it deserved.