ACLU slams Obama administration’s new IRS rules restricting nonprofit groups

Patrick Howley | Political Reporter

The American Civil Liberties Union (ACLU) slammed the Obama administration’s new proposed IRS rules to restrict the political activity of nonprofit 501(c)(4) groups in a 26-page comment submitted to the IRS and obtained by The Daily Caller.

ACLU said that the new “rule,” which is comprised of many different provisions, open the door to more of the kind of politically-motivated IRS targeting that snared conservative groups between 2010 and 2012.

ACLU also stated its “serious concerns with the rule… from a First Amendment perspective,” saying that “the proposed rule threatens to discourage or sterilize an enormous amount of political discourse in America,” and noted that even the ACLU Foundation’s activities would be negatively impacted.

The new rules, devised in secret by a Treasury Department official and disgraced IRS official Lois Lerner as early as June 14, 2012, would place much more stringent controls on what would be considered political activity by the IRS, effectively limiting the standard practices of a wide array of non-profit groups.

“As we explain in detail in our comments below, while we support replacing the current ‘facts and circumstances’ test for political activity by affected tax-exempt organizations with a bright-line standard, we have serious concerns with the rule as proposed in the Notice, both from a First Amendment perspective and as a simple matter of workability,” ACLU Washington Legislative Officer director Laura W. Murphy and ACLU legislative counsel/policy advisor Gabriel Rottman stated in their comment to the IRS.

ACLU objected to the “definition of candidate-related political activity (“CRPA”), which would cover any public communication that refers to a candidate within 30 days before a primary or 60 days before a general election, or, in the 60 days before a general election, refers to a political party.”

ACLU also expressed concern with the “functional equivalence” test to interpretively judge what is and what is not political activity, saying that the vague provision “will produce the same structural issues at the IRS that led to the use of inappropriate criteria in the selection of various charitable and social welfare groups for undue scrutiny.”

ACLU’s own activities would be affected by the rules, because regulators will likely look to the new 501(c)(4) rules as “guidance” when considering 501(c)(3) operations like the ACLU Foundation.

“The breadth of the proposed definition of CRPA could therefore significantly impair the ability of the ACLU’s § 501(c)(3) entity, the American Civil Liberties Union Foundation, Inc. (“ACLU Foundation, Inc.”), to engage in public communications and advocacy, despite only an insubstantial part of its activities being federal or state lobbying, and its complete avoidance of any partisan political activity. The ACLU Foundation, Inc. sponsors communications that mention candidates for public office as part of its issue advocacy that some may argue qualify under the proposed definition of CRPA,” according to the comment.

“The Proposed Blackout Period in the 30 Days Before a Primary and 60 Days Before a General Election Will Sweep In Vast Amounts of Non-Partisan Issue Advocacy, and Will Pose Daunting Logistical Challenges for Tax-Exempt Groups,” according to the comment.

In sum, the proposed “bright-line” rule offers a triple whammy for free speech. It suffers from an overabundance of clarity through application to virtually all legitimate issue advocacy during the 60/30-day blackout periods and the presidential rolling blackout. It repeats the sin of the “facts and circumstances” test through its application to all communications “susceptible of no reasonable interpretation” other than express advocacy. And, it paints with too broad a brush in its proposed application to unbiased and non-partisan voter registration activity, GOTV drives, voter education guides and candidate forums,” the comment stated.

“We have no doubt that the Service is acting with the best of intentions, but the proposed rule threatens to discourage or sterilize an enormous amount of political discourse in America,” the comment stated.

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