01.27.2014 1

Chuck Schumer is wrong about 501(c)(4) donor disclosure

Chuck SchumerBy Robert Romano

“It is clear that we will not pass anything legislatively as long as the House of Representatives is in Republican control, but there are many things that can be done administratively by the IRS and other government agencies — we must redouble those efforts immediately.”

That was Sen. Chuck Schumer (D-N.Y.), speaking at the Center for American Progress on January 23, as reported by the Washington Free Beacon.

This statement did not occur in a vacuum, and there is context. It was a speech about how to “weaken” and “exploit” the tea party. And he is not referring to hypothetical rules the IRS might implement, he is telling the Obama Administration to move forward with new IRS rules proposed in November that will severely restrict the speech of tea party and other 501(c)(4) organizations.

Even though Congress has not voted to change rules governing these groups that have been in place decades. In fact, Congress explicitly rejected doing so when the issue came up in 2010 via the DISCLOSE Act. To say nothing of the fact that suppressing political speech clearly violates the First Amendment of the Federal Constitution.

Let’s be clear. Schumer thinks — like Obama who at a recent cabinet meeting said “we are not just going to be waiting for legislation” to act — that somehow the executive branch has the power to make and change law as it sees fit. And that one of the laws this all-powerful executive can enact is to restrict the speech of political opponents.

A clearer statement in favor of fascism — the ceding of legislative powers to the executive and the suppression of dissent — cannot be found in recent American discourse by an elected official.

New agency rule will squelch dissent

Merriam Webster defines fascism as “a way of organizing a society in which a government ruled by a dictator controls the lives of the people and in which people are not allowed to disagree with the government.” There’s actually a bit more to the ideology, but let’s just take the plain meaning of the word.

A government where the executive can make laws without approval of the legislative branch is by definition dictatorial. The new IRS rule, which was brought to no vote in Congress, clearly falls into that category.

And that the new rule will suppress political speech of government opponents is beyond question.

It disregards the statute itself that only explicitly prohibits electioneering of 501(c)(3) charities, but not (c)(4) social welfare groups. Instead it seeks to modify a 54 year old agency rule that currently allows (c)(4) organizations to engage in electioneering activities so long as it does not constitute a majority of their activities.

Now, limitations will be imposed not simply on advocacy for or against a candidate for public office, as has been the case for decades, 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.”

This would be a return to the “functional equivalent of express advocacy” that was struck down in Wisconsin Right to Life v. FEC (2007).

The rule also applies blackout periods 60 days prior to the general election and 30 days prior to primary elections at the federal, state, and local level. Such blackout windows have been repeatedly ruled unconstitutional in federal court, in South Carolinians for Responsible Government v. Krawcheck, et. al (2012) and in Citizens United v. FEC (2010).

Now, the agency will no longer 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.”

It will even consider past advocacy that occurred prior to the rule change in an ex post facto manner: “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.”

For organizations that operate websites that go back years or even decades, this might require purging archives of articles written that might mention an official who happens to be a candidate in particular election cycle.

To put the new rule into perspective, this particular article criticizes Chuck Schumer. But he is not up for reelection again until 2016. Under the new rule, it might be okay to leave this piece up in 2014 and 2015, but once he’s on the ballot again, we might have to take it down.

That is, lest anyone come to the realization close to the election of the indisputable fact that Chuck Schumer is, by definition, a fascist — whose views on speech and political dissent he disagrees with have no place in a free society, let alone qualify him for the elected office he seeks.

Schumer himself in the speech specifically said who the targets of the new rules are. They are meant to silence, as he put it, “Tea Party elites [who] gained extraordinary influence by being able to funnel millions of dollars into campaigns with ads that distort the truth and attack government.”

That is, the truth as he sees it. And if Chuck Schumer represents the government’s position on free speech, or the lack thereof, then Obama has truly succeeded in transforming America into a system that will punish its opponents with the force of law, political violence, or worse.

The Friends of Abe

The Schumer speech came the same week it was revealed that a group of conservative and traditionally minded entertainers in Hollywood applying for tax-exempt 501(c)(3) status wherein donations are tax-deductible had been put on the IRS “Be On the Look Out” (BOLO) target list.

Called the Friends of Abe — named after Abraham Lincoln, the first Republican president — the group is claiming that in the application process, which has still not been approved after two years, the agency demanded access to its membership list. The group refused.

What makes this significant is that if the list had been made a part of the application process, it could have risked the information becoming public. Once a 501(c)(3) application is approved, it is a matter of public record.

What are not public are groups’ donors and members who, in the case of Friends of Abe, fear professional repercussions in Hollywood for being conservative.

This is precisely the sort of disclosure that the Supreme Court struck down 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.”

In so doing, the Court said that a group’s membership lists could not be forcibly disclosed. Here, the Court protected a constitutional right to anonymity particularly when a disclosure requirement threatened the ability of a group’s members to speak freely.

There is no allegation that Friends of Abe was engaged in electioneering. There were no ads it purchased or mailings that were sent out endorsing candidates. Having meetings and expressing conservative values, or even engaging in a limited amount of issue advocacy — which are allowed by both the statute and rules governing 501(c)(3)s — comes nowhere near the electioneering activities prohibited under those rules.

There are thousands of (c)(3)s across the country that do the same exact thing on all sides of the political spectrum that have never had trouble getting their applications approved.

What can be done?

The only leverage Republicans in Congress have is to insist that the IRS regulations be prohibited as a condition of increasing the debt ceiling or funding the government at all.

Their refusal to do so lest there be a government shutdown is nothing short of weakness. They are in effect standing by and do nothing, making them little better than those who stood by silently in the 1920s and 1930s as political dissent was systematically squelched in Italy, Germany, Russia, and elsewhere.

Is that unfair? In the least, Republicans appear content waiting for courts to act on this issue while the censorship goes on unabated. This is not a case of the Federal Election Commission enforcing the congressionally enacted McCain-Feingold campaign finance statute, as in the past. That has already been overturned.

This is a rogue agency creating rules out of whole cloth to squelch dissent and enforcing them as if they were law in defiance of repeated court rulings calling those very rules censorship. To sit idly by now is inexcusable.

Do Republicans defend the American people’s right to dissent against government injustice, or not?

Perhaps Aldous Huxley was correct, when he wrote to George Orwell in 1949 that “the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging and kicking them into obedience.”

Maybe elected Republicans are content being serfs, and they are no longer the party of Lincoln that once fought slavery in all its forms. The Friends of Abe would do well to take note.

Robert Romano is the senior editor of Americans for Limited Government.

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