The English language is a tricky thing. Adding or subtracting just one word can entirely change the meaning of a sentence. Today that word is “this.” Allow me to explain.
News coverage of the record-setting public comments submitted to the IRS regarding the Agency’s proposed rulemaking governing the permissible activities of 501(c)(4) social welfare organizations has emphasized that the public is fiercely opposed to the proposed rules. However, a recently released Public Citizen study of the comments submitted by organizations finds that “67 percent of the organizational comments favored going ahead with rulemaking,” according to their press release.
We were surprised by Public Citizen’s finding because CCP also tracked and analyzed every comment on the IRS rules submitted by organizations. How did Public Citizen determine that 67% of organizations favored going ahead when we, and almost every other observer, have concluded that the public overwhelmingly opposes the rulemaking?
A closer look at Public Citizen’s study reveals the answer: they count any group that suggested a change to the current rules as in favor of “going ahead with rulemaking” because, hey, a change to the rules would require a rulemaking. This is what I meant when I mentioned the importance of the word “this”: Public Citizen can say groups favored “going ahead with rulemaking,” but it cannot say these groups favored going ahead with *this* rulemaking. By leaving out that little word “this,” Public Citizen is able to make it appear as though a majority of groups support an action that the vast majority actually opposes. A few prime examples illustrate this shoddy and misleading analysis:
Of the 593 organizations Public Citizen included in their study, 65 were groups who signed on to comments submitted by the Alliance for Justice, a national association of progressive-leaning advocacy organizations. While Public Citizen includes these 65 groups in its 67 percent that allegedly “favored going ahead with rulemaking,” the AFJ sign-on letter explicitly states (in bold): “We request that Treasury and the IRS withdraw the proposed regulation and work with the regulated community to develop a better approach.”
Another 27 groups that Public Citizen thinks “favored going ahead with rulemaking” are organizations signed on to comments written by the Alliance Defending Freedom, a conservative Christian nonprofit organization. A quote from those comments: “In fact, we believe that the current 501(c)(3) political activity prohibition is unconstitutional and severely restricts the First Amendment rights of numerous exempt organizations. The proposed new regulations, in essence, seek to “double down” on the unconstitutionality of the current regulations. Thus, they should be withdrawn in favor of a better approach that grants much-needed clarity in this area.”
Another 52 groups in the “favored going ahead with rulemaking” camp are signers on comments submitted by the Funders’ Committee for Civic Participation, a coalition of many left-leaning foundations advocating for increased public engagement in the political process. Here is a quote from their comments: “we urge the IRS to restart the process with bright-line rules that rationally distinguish between partisan and nonpartisan forms of democratic participation.”
If this is support for the rulemaking process, I would hate to see what opposition looks like. Those are just three examples, but they account for a whopping 144 of the 398 (36%) organizations that Public Citizen counts as favoring rulemaking and 24% of the 593 total organizations polled.
To recap: The Alliance for Justice and 64 other groups say “withdraw the proposed regulation,” and Public Citizen hears “go ahead.” The Alliance Defending Freedom and 26 other groups say “they should be withdrawn,” and Public Citizen hears “go ahead.” The Funders’ Committee for Civic Participation and 51 other groups say “restart the process,” and Public Citizen hears “go ahead.” Public Citizen, I worry that you’re hearing us, but you’re not listening to us.
Public Citizen counts these groups as “favoring going ahead with rulemaking” because their comments express at least some disagreement with aspects of the current rules but this is painting with an incredibly broad brush – even CCP lands in Public Citizen’s 67 percent in favor of rulemaking category because of our criticism of the flawed “facts and circumstances test” that the IRS currently uses to make determinations about an entity’s tax-exempt status.
By watering down the poll question from “do you support changing the law to X?” to “do you support changing the law at all?,” Public Citizen is able to manufacture a number that they can use to mislead the public into thinking there is broad support for the IRS’s actions. What other purpose could there be to doing a poll this way? To find out how many groups think the current tax code is absolutely perfect? I don’t think we needed a poll for that.
Much more likely, Public Citizen intends for readers to assume that 67 percent in favor of going ahead with rulemaking means that 67 percent are in favor of going ahead with the proposed rulemaking. That is what any reasonable person would assume and certainly the impression given by the press release, which states that a majority of groups “encouraged the IRS to stick to the path of this rulemaking and move forward.”
This kind of obfuscation is Page 1 in the so-called “reform” community playbook. They will blame anything and everything you might complain about on campaign finance law and tell you the solution is to put the government in charge of who’s allowed to speak and for how long. Tax rules unclear? IRS allowing too much free speech? Not enough? D.C. not listening to the little guy? Politicians corrupted? Not enough diversity in politics? Back pain? There’s nothing campaign finance reform can’t solve! You all agree with us, if only you knew it!
Those of us based in reality should not fall for this snake oil, and the comments of organizations and individuals weighing in on the IRS rulemaking demonstrate that most have not. Regardless of what Public Citizen tells you, the response to these rules has been overwhelmingly negative. And if you don’t believe us, you can read them for yourself. Additionally, you can also check out hundreds of organizations who have commented in opposition to various aspects of the proposed rulemaking on CCP’s website here.
