Civil Liberties

To End IRS Abuses of Free Speech, End the IRS

The tax agency has a history of use as a bludgeon against enemies of sitting administrations and the IRS itself.


Joshua Doubek

To read the headlines, you'd think the biggest controversy involving the Internal Revenue Service (IRS) is over the spat between Rep. Darrell Issa (R-Calif.) and Rep. Elijah Cummings (D-Md.) in the course of an aborted hearing into the IRS's targeting of primarily conservative political organizations. "We're better than that as a committee," Cummings protested after Issa cut off his statement/question (the Democrat characterized it as both). Better than that? These are elected government officials posturing for the cameras after Lois Lerner, the IRS's former head of tax exempt groups, refused to testify about violations of free speech rights. None of these people have the right to claim to be "better" than anything.

And lost in this silliness is the real issue: the threat to political expression inherent in the federal tax apparatus, no matter whether through malice, regulatory zeal, ineptitude, or sheer weight of bureaucracy.

The current concerns over scrutiny of Tea Party groups, which later expanded to encompass, to a lesser degree, some progressive groups, grow from the IRS's regulatory power over nonprofit organizations. It's attractive for groups seeking donations to organize as nonprofits, because contributions to them can be deducted from taxes, so long as they don't engage in explicit politicking as the IRS interprets such things. The fact that there's no such thing (and never can be) as clear lines among cultural activity, education, religious proselytizing, and political speech is an invitation to an eternal game of rules-enforcement whack-a-mole by IRS bureaucrats against nonprofits, with severe penalties at stake.

Unsurprisingly, the power to pick who to scrutinize and how to interpret the rules is subject to abuse.

The kerfuffle over Tea Party organizations involves 501(c)(4) groups (referring to the section of the tax code under which they're organized), but the tax agency has authority over organizations registered under any section of the tax code, with different rules to go with each variation.

That putting the IRS in this role with the power to decide what sort of speech is acceptable was a stupid, stupid idea should have been clear from the beginning. The tax agency has a history of use as a bludgeon against enemies of sitting administrations and the IRS itself, which goes back long before regulatory control over nonprofit organizations became an issue. 

President Franklin Delano Roosevelt unleashed tax auditors and prosecutors against newspaper publishers who were critical of his administration, rival politicians inside and outside his party, and former Treasury Secretary Andrew Mellon, whom he considered a "master mind among the malefactors of great wealth."

"My father," Elliott Roosevelt said of former President Franklin Delano Roosevelt, "may have been the originator of the concept of employing the IRS as a weapon of political retribution."

The administration of John F. Kennedy created an "Ideological Organizations Audit project" within the IRS which specifically targeted right-of-center organizations. He also sent tax agents after Teamster leader Jimmy Hoffa when prosecutors couldn't touch him.

Richard M. Nixon kept the IRS's focus on ideological enemies—though he flipped it around and targeted liberal and antiwar groups that opposed his policies. He also unleashed tax agents on journalists he found troublesome.

And, the tax collectors take care of their own. When New Mexico's Sen. Joseph Montoya announced hearings into IRS abuses in 1972, the tax agency investigated him and listed him as a potentially violent tax protester.

In a 1989 New York Times article, investigative reporter David Burnham wrote, "The history of the I.R.S. is riddled with repeated instances of agents acting out of self-interest or pursuing their own ideological agenda, as well as examples of Presidents, White House staff and Cabinet officials pressuring the tax agency to take political actions."

Under the circumstances, is it really a shock that the IRS Inspector General found "The IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions…"

Fox, meet chicken coop. Could it have been any other way?

Some apologists for the bureacratic scrutiny under which organizations that speak out on political issues suffer say the real issue is that the IRS doesn't do enough scrutinizing—it should put the screws to more organizations across the political spectrum. Citizens for Responsibility and Ethics in Washington (CREW) sued to try to force the IRS to be stricter, and to nudge groups that were organizing as 501(c)(4)s to instead incorporate as 527s, so that they'd be subject to different rules, including the requirement that they disclose the source of their money. That would, it should be noted, eliminate one channel for anonymous speech by people who might, for some odd reason, fear retribution for their political statements.

The judge in the case last week dismissed CREW's complaint as too speculative. But his safari through precedent and the tax code on the way to that conclusion left in place the implication that the first thing anybody who wants to join together with others to voice their concerns about public policy should do is avail themselves of a good tax attorney.

That's especially true since the rules are a moving target. Organizations across the political spectrum object that the federal government plans to tighten rules based on the proximity of communications and events to elections, with 60 days as the magic cut-off. In response to the proposed revisions, a letter signed by Bradley A. Smith and Alan Dickerson of the Center for Competitive Politics (CCP) "questions whether the IRS should be engaged in the minutiae of regulating political or politically-related speech at all," although it goes on to recommend a streamlined regulatory process that would keep tax collectors in the game.

Here's a thought: Recognize that the IRS is too dangerous to be allowed to play with politics, in any way. Strip it of the power to distinguish among types of speech and to anoint "acceptable" educational verbiage while penalizing "forbidden" politicking.

That can only be a first step, since the tax agency's depredations against free speech predate the regulation of nonprofit organizations, and its worst actions have been overtly malicious. Dismantling the IRS is a necessary next step in terms of protecting free speech—if necessary, sow the place where it once was with salt.

Yes, more salt will be needed, because the IRS hardly stands alone. CCP's Bradley Smith, mentioned above, is a former member of the Federal Election Commission. He points out the threat posed by his former agency and its state-level counterparts to the exercise of political speech. And law-enforcement agencies from the local level up to the federal government have also abused their authority for political purposes.

And, true, escorting the tax man out of American political life won't actually make the likes of Cummings, Issa, and Lerner any "better" than they are now. Or better than anything at all. But the IRS is especially intrusive in terms of the authority it wields over American life. Dismantling it will deprive politicians of a powerful weapon they've often used against their enemies.

And it's as good a place as any to start tearing down threats to free speech.