Memo to some at IRS: Free speech is just that

Monday, May 13, 2013

The news that an office of the Internal Revenue Service had targeted for review a number of groups with names that included “patriot” or “tea party” is chilling enough to  hear  – but there’s even more reason to be concerned from a First Amendment perspective.

According to documents from a government report obtained by The Washington Post, the IRS started out in 2010 giving special attention to groups where “statements in the case file criticize how the country is being run.”

After objections by an IRS administrator, the agency revamped its search criteria through 2012 – to focus on groups applying for tax-exempt status that called for limiting or expanding the size of government, education on the Constitution or teaching about the Bill of Rights.

One IRS official said the searches used those words and subject matter as a shortcut in looking for fraud among such groups, and that the investigation was undertaken after a sharp rise in new tax-exempt status applications between 2010 and 2012.

The IRS looks for tax fraud – check!  An investigation in this area starts with people claiming a certain exemption – check!

But did anyone at the field office where this activity began ever stop to “check”  the 45 words of the First Amendment, which speak specifically to the very subject matter being “targeted:” Criticism of the government and contrarian issues with how much or how little government we need?

And, even if the meaning of those 45 words were too tough to decipher in the specific, shifting the focus to going after the myriad of people and groups who educate about the Constitution and Bill of Rights is so broad a task as to be just downright silly. It begs the idea that what really was going on was pursuit of a smaller group – and some conservatives already are complaining they were the ones really in the IRS gunsight.

I get the point about seeking out blatant tax cheats, via auditing returns and asking for additional data. But in the search for those who lie on their 1040 form do we really expect  IRS agents to be shadowing people who teach accounting, “just in case.”

The central issue here is whether groups that are exempt from federal taxes are using that money to be candidate advocates or campaign funders where they shouldn’t be. And in truth, as a nation we’re still debating where that line is drawn after the U.S. Supreme Court’s Citizens United v. Federal Election Commission decision in 2010 that corporations and unions may spend money in support or opposition to candidates (though each still is forbidden from direct contributions).

The justices, in a 5-4 vote, saw the question in that case as one of free speech – and that corporations and unions have such a right to speak openly on political issues. The decision sparked a storm of criticism, including a State of the Union speech in which President Obama said, “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests … to spend without limit in our elections.”

It’s too early to know how the current scandal will play out over focusing on groups engaged in education about our core values or political issues– and how high in the IRS or administration the decisions were made to do so.

But what’s already clear is that our basic freedoms ought not to be so cavalierly “targeted” by such an intimidating, powerful government agency.  To say that such investigations will only get the “bad guys,” those abusing their tax-free pulpits and platforms, ignores the reality that such activity is all but certain to chill the speech of many engaged in one of our most-treasured and protected forms of free expression: political speech.

Historically, we as a society have provided the highest level of free speech protection to those engaged in debate, discussion and discourse on issues of public policy.  The free exchange of ideas through highly partisan campaigns and lofty academic discussions on the nature, range and purposes of public policy are the heart and muscle of our process of self-governance.

IRS officials no doubt regularly are focused on reading sections of the Tax Code. But perhaps now those within the IRS who would abuse their power can be persuaded to switch to another – much shorter – “government publication:” The First Amendment.







Tags: , , ,