Experts Say IRS Guidance Will Restrict Free Speech

Move seen as a reaction to scandal involving unfair treatment of Tea Party groups


Campaign finance experts criticized on Tuesday guidance from the Internal Revenue Service on activity by 501(c)(4) advocacy groups, saying it will unduly restrict activity that rightfully falls under the federal government’s “social welfare” moniker.

The IRS and the Treasury Department, in a joint statement, presented the new regulations as a means to make rules governing nonprofit groups more clear cut and enforceable.

“This is an astonishing—and from this feckless, hyper-partisan administration, unsurprising—effort to curtail the free speech of Americans who come together to better their community,” said campaign finance attorney Dan Backer in an email.

The move was widely seen as a reaction to an ongoing scandal involving IRS treatment of applicants for 501(c)(4) status that were singled out for their perceived affiliations with the Tea Party movement.

However, experts say the guidance goes too far and amounts to an effort to roll back the Supreme Court’s 2010 decision in Citizens United v. FEC, which liberals have decried as allowing undisclosed donors too much influence over the political process.

Some noted that provisions restricting communications that mention a political candidate or party within 60 days of a general election and 30 days of a primary are similar to pre-Citizens United prohibitions on such communications.

“This is another transparent attempt by the administration to overturn that decision,” said Hans von Spakovsky, manager of the Election Law Reform initiative at the Heritage Foundation and a former Federal Election Commissioner.

The guidance, Von Spakovsky said in an email, “should be opposed by the entire nonprofit community regardless of whether they are on the left or the right side of ideological aisle.”

Sen. Orrin Hatch (R., Utah), ranking Republican on the Finance Committee, pledged to “thoroughly oversee this process to ensure politics aren’t brought to bear,” citing concerns over the IRS’ treatment of Tea Party groups.

“I find it unfortunate that the administration decided to move ahead with these new rules before the Finance Committee could conclude its bipartisan investigation into the targeting of those applying for tax-exempt status,” Hatch added.

Under federal law, at least 50 percent of (c)(4)’s activity must be devoted to “social welfare.” Language released by IRS and Treasury on Tuesday excludes a host of activities from that label.

Those activities include “communications that expressly advocate for a clearly identified political candidate or candidates of a political party” and “voter registration drives and ‘get-out-the-vote’ drives.”

“To suggest that voter registration is in any way not in the betterment of any and every community is patently absurd,” Backer noted.

Backer, who represented a number of Tea Party groups that were allegedly targeted by IRS officials, also said the backlash against the rules should be bipartisan.

“I would hope a broad coalition of voices would come together to prevent these unelected bureaucrats from enshrining such atrocious restraints on speech into law,” he wrote in an email.

Acting IRS commissioner Daniel Werfel said in Tuesday’s statement that the guidance is “part of ongoing efforts within the IRS that are improving our work in the tax-exempt area.”

“Once final, this proposed guidance will continue moving us forward and provide clarity for this important segment of exempt organizations,” Werfel wrote.

However, both Backer and Von Spakovsky worried that the guidance would restrict the ability of (c)(4) groups to conduct legitimate social welfare activity.

“It would stop lots of grassroots activity on issues and prevent lobbying on many issues before Congress,” Von Spakovsky said.

Rep. Darrell Issa (R., Calif.), who has spearheaded the congressional investingation into the IRS’ targeting of Tea Party groups, called the guidance “a crass political effort by the administration to get what political advantage they can, when they can.”

“The regulation released today continues [the administration’s] unfortunate pattern of stifling constitutional free speech,” Issa said in a statement.

Lachlan Markay   Email | Full Bio | RSS
Lachlan Markay is a staff writer for the Washington Free Beacon. He comes to the Beacon from the Heritage Foundation, where he was the conservative think tank's first investigative reporter. He was also a contributing editor for His work has appeared in the Wall Street Journal, the Washington Times, and the Washington Examiner. He graduated from Hamilton College in 2009, and currently lives in Washington, D.C. His Twitter handle is @lachlan. His email address is