IRS Proposed Regulations Will Silence Conservative Organizations

Commentary by Mat Staver, the Founder and Chairman of Liberty Counsel, Chairman of Liberty Counsel Action, Chairman of Liberty Action PAC, Chairman of The Salt & Light Council, Vice President and Chief Counsel for the National Hispanic Christian Leadership Conference, and serves on a number of other boards. Mat also serves as Dean and Professor of Law for Liberty University School of Law. Mat is a nationally recognized constitutional attorney and appellate advocate. He has argued cases before the United States Supreme Court and submitted numerous briefs to the High Court. Mat is a Trustee for the Supreme Court Historical Society. 

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We are witnessing unprecedented assaults against the free expression of Christian and conservative viewpoints. The IRS has proposed a new regulation that will silence conservative organizations during this critical election year.

While everyone was enjoying the Thanksgiving and Christmas holidays, the Obama administration deployed the Internal Revenue Service (IRS) in its war against conservatives. President Obama is using executive fiat to further politicize the IRS and disable his adversaries before the 2014 and 2016 elections.

This photo taken March 22, 2013, shows the exterior of the Internal Revenue Service (IRS) building in Washington. (AP Photo/Susan Walsh) 

IRS Regulation-134417-13, “Guidance for Tax-Exempt Social Welfare Organizations on Candidate-Related Political Activities,” is a proposed new regulation that is an outrageously brazen attempt by the IRS to silence the speech of 501(c)(4) organizations before the upcoming election. If implemented, the regulation would prohibit a 501(c)(4) from speaking to matters of public concern during the 2014 election cycle.

In part, the proposed regulation:

• Prohibits using words like “oppose,” “vote,” “support,” “defeat,” and “reject;”
• Prohibits mentioning, on its website or on any communication (email, letter, etc.) that would reach 500 people or more, the name of a candidate for office 30 days prior to a primary election and 60 days prior to a general election;
• Prohibits mentioning the name of a political party 30 days prior to a primary election and 60 days prior to a general election, if that party has a candidate running for office;
• Prohibits voter registration drives or conducting a nonpartisan “get-out-the-vote" drive;
• Prohibits creating or distributing voter guides outlining how incumbents voted on particular bills;
• Prohibits hosting candidates for office at any event, including debates and charitable fundraisers, 30 days prior to a primary election or 60 days prior to a general election, if the candidate is part of the event's program;
• Prohibits distributing any materials prepared on behalf of a candidate for office;
• Restricts employees of such organizations from volunteering;
• Restricts the ability of officers and leaders of such organizations to make public statements regarding the nomination of judges;
• Creates a 90-day blackout period, in an election year, that restricts the speech of §501(c)(4) organizations;
• Declares political activity as contrary to the promotion of social welfare; and
• Protects labor unions and trade associations by not including them under the proposed regulations.

The proposed IRS regulation even restricts the ability of leaders within these organizations to speak publicly regarding legislative matters of public concern and to volunteer! What an egregious abridgement of our freedom of speech!

During the 2012 elections, the IRS targeted Tea Party and other conservative organizations solely because of their conservative positions. This politically motivated targeting of 501(c)(4) organizations sought to prevent them from obtaining the (c)(4) status. The new proposed regulation seeks to silence those organizations that are recognized as (c)(4) organizations.

(Photo: Shutterstock.com) 

The implementation of this new set of regulations prior to the 2014 election is no coincidence, especially considering that trade associations and labor unions are exempted.

And while IRS REG-134417-13 applies to 501(c)(4) organizations, it will also surely be applied to 501(c)(3) organizations and churches. Both types of organizations are tax-exempt. Contributions to the former are not tax-deductible but to the latter are tax-deductible. Because 501(c)(4) organizations do not have tax-deductibility for contributions, they have historically been allowed to engaged in unlimited lobbying activity and even occasionally endorse or oppose candidates. It therefore follows if these organizations will be prohibited from any of the above activities, then a 501(c)(3) organization will also face similar restrictions.

Included in the list of actions prohibited by this regulation are non-partisan “get-out-the-vote” drives that merely seek to register more people to vote. In other words, conservative 501(c)(4) organizations will not be able to encourage people to register to vote or to vote! This is intolerable!

The implications of this proposed regulation are astounding. Only the left will be permitted to get out the vote using well-funded labor and unions and trade associations. This is Chicago-style bully politics.

[sharequote align="center"]This is Chicago-style bully politics.[/sharequote]

The public comment time to voice opposition to the IRS regulation ends on Feb. 27, 2014. I am encouraging people to file opposition statements with the IRS. However, I have also communicated with Members of Congress who are understandably concerned over this proposed regulation. Congress must defund or derail this regulation.

If the regulation passes, my organization, Liberty Counsel, will file suit. Others will too. While I believe the regulation will be struck down because it violates the First Amendment, the question is whether a court ruling will be in time for the 2014 or 2016 elections. If not, the damage will be done.

Organizations and leaders may have to speak up, despite the threats from the IRS, and then take the battle to the courts if this regulation is implemented. To be silent while waiting for judicial relief runs the risk that conservative voices will be silenced during the upcoming election.

Our nation is at a crossroads. Now, more than ever, it is imperative that we defend liberty and freedom of speech.

As Benjamin Franklin once said, “We must all hang together, or most assuredly we will all hang separately.”

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