Recommendations Would Make Vague IRS Rules Worse
For Immediate Release
June 27, 2013
Contact: Joe Trotter
210-352-0055 (Cell)
Alexandria, Va – The Center for Competitive Politics today released an analysis of the “Bright Lines Project,” an attempt by a panel of nonprofit experts to clarify the vague rules that helped create the IRS scandal, that found it “has failed to live up to its name, does little to clarify the IRS’s infamous ‘facts and circumstances’ test and, in some respects, makes matters worse.”
Author and Senior Fellow Eric Wang writes in the report that “The proposed rule would continue to regulate the timing, manner, and content of constitutionally protected speech about matters of public importance. Similarly, the proposal would still put the IRS in charge of regulating and making judgments about such speech, despite the inherent dangers in granting it such powers, not to mention the agency’s longstanding incompetence and lack of interest in doing precisely that.”
Wang goes on to warn that “the guiding principle of the General Speech Rule [in the project’s recommendations] is to simply ban more speech by defining more of it as political campaign intervention. Groups that wish to speak would need to prove after the fact, if they can, the speech is permissible because it is neutral or falls under more complex exemptions. This will greatly chill speech about legislation and issues.”
The proposal purports to clarify vague rules through “safe harbors” that would help groups. These “safe harbors,” much like the project’s name, are a misnomer, as none of the exceptions apply to “paid mass media advertising.” Even if groups forgo paid advertising, they are still likely to run afoul of the rules, as exemptions are often so narrow as to provide no shelter. Advocacy targeted at legislative officials must be done while a “legislative vote or other major legislative activity” is pending.
“These limitations render this safe harbor comically underinclusive and nonsensical,” notes Wang. “In order to determine whether there is “more than a theoretical possibility” or a “significant chance” that a government official will take action on an issue during the official’s current term of office, the IRS (as well as non-profit groups) would be put in the position of prognosticating secretive backroom agreements about the legislative and executive calendar.
“Instead of proposing a narrowly tailored, objective, easy-to-understand and easy-to-administer rule, the Project advocates for another broad, open-ended, and vague standard, along with expansive new variations on relatively clear existing concepts. The proposal actually expands the IRS’s nebulous ‘facts and circumstances’ test when activities do not fall within one of the proposal’s limited, and deceptively named, ‘safe harbors.’ As a whole, the Project would still leave the IRS in charge of regulating the timing, manner, and content of issue advocacy, thereby chilling speech that is at the core of the First Amendment’s protections.
Wang notes that “the Project proposes that a communication disseminated in ‘locations where close election contests are occurring’ could be ‘conclusive’ evidence of political intervention. Discussion of ‘wedge issues,’ ‘use of political code words,’ an organization’s ‘factual credibility,’ an organization’s ‘impartiality,’ ‘external events,’ and ‘the reaction of candidates and the media’ are other factors the Project proposes for consideration in determining political intervention.”
Wang asks “Do we really want to empower the IRS with being the speech police and determining what constitutes ‘political code words?’ (We saw how well that worked when the agency decided the phrase ‘Tea Party’ was code for political intervention.) And what issues should be considered ‘wedge issues’? Abortion? Guns? Gay marriage? Sequestration? Where does it begin or end? Would the IRS publish an annual list of ‘wedge issues’ like its standard mileage rates for the business or charitable use of a car? Would the IRS also publish a weekly list of ‘close election contests?’ Do we really want the IRS deciding these questions?”
A copy of Wang’s complete analysis is available here.
You can read more about the analysis in today’s Roll Call op-ed here.
The Center for Competitive Politics promotes and defends the First Amendment’s protection of the political rights of speech, assembly, and petition. It is the nation’s largest organization dedicated solely to protecting First Amendment political rights.
