Former Justice Officials: Regulation of Political Speech Goes Too Far

The Internal Revenue Service targeting scandal highlights the problem of excessive restrictions on political free speech, according to former Justice Department officials David Rivkin and Lee Casey.

"The federal regulation of political speech has already gone further than can be justified by existing law, let alone the Constitution," the two, who are now Baker & Hostetler partners, wrote Thursday in op-ed piece for The Wall Street Journal.

They said the political speech debate now centers on the IRS controversy over political or social-welfare organizations seeking exemptions federal income taxes under section 501(c)(4) of the tax Code.

On Wednesday, Rep. Chris Van Hollen, D-Md., filed a lawsuit to make the IRS tighten eligibility rules for politically active groups seeking 501(c)(4) status.

Rivkin and Casey called that a bad idea because, they said, "'Social welfare' is a capacious term that includes many policy and political goals—from preserving historic battlefields to repealing laws for or against same-sex marriage."

The IRS has long allowed these groups to operate wholly as lobbyists they pointed out, noting, "In other words, they are permitted to engage in political speech directed at government officials."

"At the same time, however, the IRS says that political campaign activities cannot account for more than half of a 501(c)(4)'s expenditures," the two continued. "But the statute itself contains no such limitation. In short, the IRS effectively robs social-welfare organizations of one half of their potential political speech.This distinction between lobbying and election advocacy is entirely arbitrary."

Electing the right candidate may be a group's only means to achieve its social-welfare purpose, the lawyers observed.

"Yet the IRS rules here are consistent with the federal government's overall approach to regulating elections since at least the 1970s," they wrote.

"Bizarre as it may be in the world's leading democracy, federal election laws treat the most effective form of political speech as the most disfavored. Stricter regulations like those sought by Rep. Van Hollen and others would only worsen the problem."

Rivkin and Casey argued that in the 2010 Citizens United case, the Supreme Court moved closer to the First Amendment, removing restrictions on independent political campaign expenditures by corporations, associations and labor unions.

"Since Citizens United, the use of 501(c)(4) organizations to engage in political speech has burgeoned — largely because such groups need not disclose their donors as purely political organizations still must," they noted.

"Calls for the IRS to close this supposed 'loophole' also have multiplied.That is a bad idea, not supported by the statutory language, and it is unconstitutional to boot."

Even though the Supreme Court has ruled the government has no duty to subsidize political speech through tax exemptions, the lawyers argued that "there is no plausible basis on which the IRS (or Congress) can limit tax-exempt status to groups that eschew independent campaign spending while permitting other forms of political speech, such as lobbying."