Skip to main content

IRS abuses power in targeting tea party

By Michael Macleod-Ball and Gabe Rottman, Special to CNN
updated 6:38 AM EDT, Mon May 13, 2013
STORY HIGHLIGHTS
  • IRS targeted tea party groups for more aggressive tax law enforcement
  • Authors say politically motivated enforcement is a risk of efforts to counter Citizens United ruling
  • IRS has been under pressure from the left to crack down on conservative groups, they say
  • Authors: Administration, Congress need to enact ironclad rules to prevent repetition

Editor's note: Michael Macleod-Ball is chief of staff at the ACLU's Washington Legislative Office. Gabe Rottman is a legislative counsel/policy adviser in the ACLU's Washington Legislative Office.

(CNN) -- The extraordinary revelation this week that the Internal Revenue Service targeted tea party groups for more aggressive enforcement highlights exactly why caution is needed in any response to the much-vilified Supreme Court decision in Citizens United v. FEC.

It also shows how all Americans, from the most liberal to the most conservative, should closely guard their First Amendment rights, and why giving the government too much power to limit political speech will inevitably result in selective enforcement against unpopular groups.

To the agency's credit, Lois Lerner, a senior official at the IRS, apologized on Friday for these unconstitutional practices, which are as unseemly as the Bush administration's targeting of the NAACP and the House of Representatives' defunding of Planned Parenthood on purely political grounds.

Michael Macleod-Ball
Michael Macleod-Ball
Gabe Rottman
Gabe Rottman

Lerner said that career IRS staff who were reviewing applicants for tax-exempt status took a harder look at applications with "tea party" or "patriot" in their names. She stressed that the added scrutiny was done as a "shortcut," not out of "political bias." But her admission calls into question earlier claims by the agency that IRS scrutiny wasn't politically motivated, and it comes in the face of repeated complaints by right-wing groups that they have been treated unfairly.

Collins says IRS revelations will fuel distrust in government

Before addressing the obvious constitutional concerns with the selective use of the tax code against political opponents, here's some background.

Certain public interest groups, like charities and nonprofit athletic organizations, do not have to pay federal income tax on their donations or dues. These tax-exempt groups include 501(c)(4) organizations (named for the relevant section of the code). To qualify, a group must be "operated exclusively for the promotion of social welfare." The definition of "social welfare" is broad, and applies to all points of view. The ACLU's lobbying arm, for which we work, is a 501(c)(4). So is the National Right to Life Committee.

IRS targeted conservative groups
Taxing day for the IRS

These social welfare groups are forbidden from engaging in too much partisan political activity. How much is too much, however, is controversial and remains uncertain. An organization that crosses over the fuzzy line will be denied tax-exempt status.

Crucially, 501(c)(4) organizations, in most cases, need not publicly disclose their donors. That policy is driven by the same concerns that prompted the Supreme Court in a civil rights-era case, NAACP v. Alabama, to prohibit that state from forcing the NAACP to out its members as a condition of operating. The court reasoned, rightly, that such disclosure could lead to violence against existing members and would dissuade potential members from joining at all.

Now, during the past couple of elections there has been a surge in applications for 501(c)(4) tax-exempt status. Some argue that these new groups are being created specifically to help elect or defeat candidates, which would otherwise prompt full donor disclosure to the Federal Election Commission.

Opponents claim these groups are abusively claiming tax-exempt status to keep their donor lists secret. Some further claim that these groups then allow wealthy individuals, corporations, and unions to anonymously funnel large amounts of money into ads supporting or attacking political candidates.

As a consequence, the IRS has been under enormous pressure to speed up and aggressively investigate applications for tax-exempt status -- both reasonable demands, if carried out impartially. But much of this outside pressure has come from the left and has been directed at conservative groups, who have an advantage in this "dark" political money.

It sounds as though the events surrounding the IRS announcement can be partly attributed to this growth in applications and the pressure to uncover "sham" 501(c)(4) groups.

Although the IRS claims this was an honest mistake, these revelations are troubling on many levels. For instance, there are several proposals circulating in Washington right now that would make it much easier for the IRS and other regulators to force political groups to disclose their donors. These disclosure requirements would apply even when the group is advocating purely on an issue of public interest, from clean air to abortion, and would apply to groups of all political persuasions and not just to groups supporting or opposing candidates for office.

The ACLU has expressed concern with these disclosure requirements precisely because they open the door to selective enforcement. Such concerns are often dismissed as speculative and overly pessimistic, but the IRS apology shows that concerns over selective enforcement are prescient. Those in power will always be tempted to use political speech restrictions against opposing candidates or causes.

The IRS announcement demonstrates that we should carefully consider any new policy that allows the government to restrict or chill political speech, including broader donor disclosure requirements. Congress and the administration should also act immediately to create ironclad checks on the IRS to prevent this from ever happening again.

It shouldn't need to be said: Even the tea party deserves First Amendment protection.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of the authors.

ADVERTISEMENT
Part of complete coverage on
updated 2:45 PM EDT, Thu April 17, 2014
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
updated 9:28 AM EDT, Thu April 17, 2014
Ruben Navarrette says Steve Israel is right: Some Republicans encourage anti-Latino prejudice. But that kind of bias is not limited to the GOP.
updated 7:23 PM EDT, Wed April 16, 2014
Peggy Drexler counts the ways Phyllis Schlafly's argument that lower pay for women helps them nab a husband is ridiculous.
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT