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Tom Donohue: Letting the Taxman Censor Political Speech?

By Tom Donohue |

Raise your hand if you think it’s a good idea for the IRS to regulate political speech.

Well, believe it or not, the Treasury Department does. It has apparently learned nothing from the scandal that engulfed the IRS in 2013, when supposedly apolitical tax agents admitted to applying extra scrutiny to conservative-leaning civic groups hoping to engage in constitutionally protected political speech in the 2012 elections.

Rather than coming up with ways to protect organizations from future IRS discrimination based on speech, Treasury, instead, proposes to double down. It wants to install the IRS as the nation’s primary political speech regulator and empower revenue agents to dictate to civic groups what kind of political speech they can engage in, when and how much.

Treasury’s proposal overreaches so broadly that groups from the entire political spectrum, from the National Rifle Association to the Sierra Club, are united in opposition. In fact, more than 145,000 comments were filed in response to the proposed rules, the overwhelming majority opposed.

The rules would, in effect, create a huge “no speech zone” for groups organized under Section 501(c)(4) of the Internal Revenue Code. The rules would cover not only election-related speech but also large quantities of speech that have nothing to do with elections. They would create long, nationwide blackouts of speech every election year. And they would capture every kind of speech — not just broadcast but Internet, newspaper, magazine, infomercial, even email to a civic group’s own members if it is intended to reach more than 500 people.

The IRS has a long history of being misused for political ends. In this case, it lacks the expertise, experience and authority necessary to regulate political speech. That job belongs to Congress and the bipartisan Federal Election Commission, both of which have refused to enact rules like the ones Treasury is trying so hard to shoehorn into the tax code. As a result, Treasury’s creation violates the First Amendment by conditioning tax status on giving up freedom of speech, flouts agency rulemaking standards that say rules can’t be arbitrary or irrational, and throws the tax rules into hopeless conflict with themselves and other laws.

Vibrant political speech is in America’s DNA. Americans don’t want the taxman acting as a political speech czar. It’s time for the Treasury Department and the IRS to withdraw their fatally flawed proposal, get out of the business of regulating political speech, and allow voices all across the political spectrum to be freely heard in 2014.

— Tom Donohue is president and CEO of the U.S. Chamber of Commerce. The opinions expressed are his own.

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