Silencing the Opposition

Edward H. Stewart, Jr.
On Wednesday, Mitch McConnell told Fox News' Megyn Kelly that the Obama administration is "initiating a new rule through the Treasury Department in the IRS to quiet the voices of outside groups." According to McConnell, the new rule would redefine what groups like the Tea Party could advocate, during a political campaign "to silence the voices of their critics going into this important fall election by using the Treasury Department regulations."

This Obama strategy apparently grew out of one of the many lies both IRS witnesses and Democratic members of the Congressional Oversight Committee used to explain away delays in granting conservative groups 501 (c) (4) status. The logjam, the narrative ran, was not politically motivated but the result of the ambiguous nature of the requirements for tax exempt status. As described in the Federal Register for November 29, 2013, the purpose of the new rule is to clarify the standards, thus enabling the IRS to grant 501 (c) (4) status more rapidly and fairly. In typical Obama fashion, that is a lie.

The real purpose of the rule change is exactly the opposite, to silence opposition to candidates, appointees, or specific partisan issues that can be identified with either a candidate or a political party. Section 1,2,b Express Advocacy Communications, reveals the secret.

These proposed regulations draw from Federal Election Commission rules in defining "expressly advocate," but expand the concept to include communications expressing a view on the selection, nomination, or appointment of individuals, or on the election or defeat of one or more candidates or of candidates of a political party.

The definition of advocacy is extremely broad, in the same spirit as the position taken by the administration in Citizens United oral argument. It threatens the wholesale suppression of political speech because it targets literally all forms of communication. (See my AT article on this issue and the connection between Citizens United and the IRS scandal here)

These proposed regulations make clear that all communications -- including written, printed, electronic (including Internet), video, and oral communications -- that express a view, whether for or against, on a clearly identified candidate (or on candidates of a political party) would constitute candidate-related political activity.

Even more ominous is the way in which a candidate is identified (italics mine).

A candidate can be "clearly identified" in a communication by name, photograph, or reference (such as "the incumbent" or a reference to a particular issue or characteristic distinguishing the candidate from others).

McConnell's got it right. In the hands of a criminally partisan IRS "reference to a particular issue . . . distinguishing the candidate from others" is not only permission to, but an instruction to harass and deny 501 (c) (4) status to any group that opposes ObamaCare, amnesty, same-sex marriage, or any other issue dear to the president's heart. Far from creating a bright-line distinction, "distinguishing the candidate from others" sets no boundaries at all, giving one of Washington's most politicized, corrupt, and powerful agencies unfettered discretion to reward Obama's friends and punish his enemies.

Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at edward.stewart27@yahoo.com.

On Wednesday, Mitch McConnell told Fox News' Megyn Kelly that the Obama administration is "initiating a new rule through the Treasury Department in the IRS to quiet the voices of outside groups." According to McConnell, the new rule would redefine what groups like the Tea Party could advocate, during a political campaign "to silence the voices of their critics going into this important fall election by using the Treasury Department regulations."

This Obama strategy apparently grew out of one of the many lies both IRS witnesses and Democratic members of the Congressional Oversight Committee used to explain away delays in granting conservative groups 501 (c) (4) status. The logjam, the narrative ran, was not politically motivated but the result of the ambiguous nature of the requirements for tax exempt status. As described in the Federal Register for November 29, 2013, the purpose of the new rule is to clarify the standards, thus enabling the IRS to grant 501 (c) (4) status more rapidly and fairly. In typical Obama fashion, that is a lie.

The real purpose of the rule change is exactly the opposite, to silence opposition to candidates, appointees, or specific partisan issues that can be identified with either a candidate or a political party. Section 1,2,b Express Advocacy Communications, reveals the secret.

These proposed regulations draw from Federal Election Commission rules in defining "expressly advocate," but expand the concept to include communications expressing a view on the selection, nomination, or appointment of individuals, or on the election or defeat of one or more candidates or of candidates of a political party.

The definition of advocacy is extremely broad, in the same spirit as the position taken by the administration in Citizens United oral argument. It threatens the wholesale suppression of political speech because it targets literally all forms of communication. (See my AT article on this issue and the connection between Citizens United and the IRS scandal here)

These proposed regulations make clear that all communications -- including written, printed, electronic (including Internet), video, and oral communications -- that express a view, whether for or against, on a clearly identified candidate (or on candidates of a political party) would constitute candidate-related political activity.

Even more ominous is the way in which a candidate is identified (italics mine).

A candidate can be "clearly identified" in a communication by name, photograph, or reference (such as "the incumbent" or a reference to a particular issue or characteristic distinguishing the candidate from others).

McConnell's got it right. In the hands of a criminally partisan IRS "reference to a particular issue . . . distinguishing the candidate from others" is not only permission to, but an instruction to harass and deny 501 (c) (4) status to any group that opposes ObamaCare, amnesty, same-sex marriage, or any other issue dear to the president's heart. Far from creating a bright-line distinction, "distinguishing the candidate from others" sets no boundaries at all, giving one of Washington's most politicized, corrupt, and powerful agencies unfettered discretion to reward Obama's friends and punish his enemies.

Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at edward.stewart27@yahoo.com.