09.30.2010 0

Baucus’ Chilling Effect on Speech

Raw, brute force — that is the preferred campaign tactic of Obama and his allies in the Congress.

On September 28th, 2010, Senator Max Baucus, Chairman of the Senate Finance Committee sent a letter to the Internal Revenue Service (IRS) urging the agency to investigate 501(c)(4), 501(c)(5), and 501(c)(6) organizations for “engaging in political activity”, as reported by Politico’s Ben Smith.

Senator Baucus cited the 501(c) section of the tax code, writing, “The law requires that political campaign activity by a 501(c)(4), (c)(5) or (c)(6) entity must not be the primary purpose of the organization.” That is technically true. It is unconstitutional, however, and Senator Baucus’ letter demonstrates exactly why.

Not only has the tax code under section 501(c) been used to limit the types of speech that certain organizations can engage in — which on its face violates the First Amendment — now Baucus wants to use the IRS to intimidate groups and threaten their tax-exempt statuses “[e]ven if political campaign activity is not the primary purpose” of the group. This is designed purely to have a chilling effect on the speech of any organizations that are otherwise lawfully exercising their rights to freedom of speech.

The issue for Baucus boils down to disclosure. These groups are not required to publicly disclose their donors like political parties and candidates, although they must be disclosed to the IRS. For Baucus, that means they are not allowed to fully exercise their free speech rights under the First Amendment, even though the First Amendment provides for no such conditional exercise of the right.

Baucus is inviting the IRS to reinterpret the 501(c) section of the law, apparently to even rein in activities previously allowed for under that section. For example, he complains about the activities of Americans for Job Security in Alaska for promoting a referendum campaign, even though these groups are legally allowed to engage in referenda processes without any public disclosure requirements.

Under Baucus’ interpretation of the law, the Federalist Papers, which advocated for the adoption of the Federal Constitution via referendum, would be illegal because they were published anonymously under pseudonyms.

Justice Clarence Thomas had the same problem with the recently decided Citizens United decision, which upheld disclosure requirements of groups engaged in electioneering. In justifying his partial dissent of that decision, he wrote of the “the fallacy in the Court’s conclusion that ‘[d]isclaimer and disclosure requirements . . . impose no ceiling on campaign-related activities, and do not prevent anyone from speaking.’”

“Of course they do,” Thomas wrote, citing “real-world, recent examples” of intimidation: citizens receiving death threats for supporting a referendum, losing their jobs for appearing on a donor list, declining to donate to a candidate’s campaign for fear of reciprocity from a sitting attorney general, having their property defaced and damaged, and other clear examples of disclosure rules being used to silence speech.

“Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights,” Thomas explained.

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the ‘primary object of First Amendment protection,’’” Thomas concluded.

While Baucus and other members of Congress are concerned about legally-constituted groups openly expressing their views, they apparently have no problem with fraudulent voting. FOX News recently reported on massive voter registration fraud in Texas, where a group called “Houston Votes” registered some 25,000 people to vote — but only 1,793 of them turned out to be valid.

This follows widespread efforts by groups like ACORN to submit phony voter registrations in several swing states, including Ohio, Indiana, Wisconsin, Nevada, New Mexico, North Carolina, and Missouri. ACORN had a long history of such fraud in Ohio, Pennsylvania, Washington, Michigan, Wisconsin, and New Mexico.

If Baucus had a commitment to fair and open elections, he would be investigating a clear pattern of voter fraud by shady ACORN-like groups; not deputizing the IRS to be his thugs to shut down legitimate debate. In the least, Baucus’ efforts to silence that debate show how little he and his ilk have to say in defense of the disastrous policies of the Obama Administration.

Individuals speaking out, whether publicly or anonymously, for or against candidates standing for public office, attempting to influence the outcome of legislation, or promoting ballot initiatives are no threat to “elections that are the constitutional bedrock of our democracy,” in Baucus’ words. Phony voters showing up at the polls are.

Bill Wilson is the President of Americans for Limited Government, a 501(c)(4) organization.

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