Skip to main content

IRS abuses power in targeting tea party

By Michael Macleod-Ball and Gabe Rottman, Special to CNN
May 13, 2013 -- Updated 1038 GMT (1838 HKT)
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
July 10, 2014 -- Updated 1620 GMT (0020 HKT)
Frida Ghitis says a poll of 14 Muslim-majority nations show people are increasingly opposed to extremism.
July 10, 2014 -- Updated 1828 GMT (0228 HKT)
Ruben Navarrette says spending more on immigation enforcement isn't going to stop the flow of people seeking refuge in the U.S.
July 10, 2014 -- Updated 2048 GMT (0448 HKT)
Faisal Gill had top security clearance and worked for the Department of Homeland Security. That's why it was a complete shock to learn the NSA had him under surveillance.
July 10, 2014 -- Updated 1841 GMT (0241 HKT)
Kevin Sabet says the scientific verdict is that marijuana can be dangerous, and Colorado should be a warning to states contemplating legalizing pot.
July 9, 2014 -- Updated 2047 GMT (0447 HKT)
World War I ushered in an era of chemical weapons use that inflicted agonizing injury and death. Its lethal legacy lingers into conflicts today, Paul Schulte says
July 10, 2014 -- Updated 1137 GMT (1937 HKT)
Tom Foley and Ben Zimmer say Detroit's recent bankruptcy draws attention to a festering problem in America -- cities big and small are failing to keep up with change.
July 10, 2014 -- Updated 1201 GMT (2001 HKT)
Mel Robbins says many people think there's "something suspicious" about Leanna Harris. But there are other interpretations of her behavior
July 9, 2014 -- Updated 2006 GMT (0406 HKT)
Newt Gingrich warns that President Obama's border plan spends too much and doesn't do what is needed
July 9, 2014 -- Updated 1753 GMT (0153 HKT)
Amy Bass says Germany's rout of Brazil on its home turf was brutal, but in defeat the Brazilian fans' respect for the victors showed why soccer is called 'the beautiful game'
July 8, 2014 -- Updated 1754 GMT (0154 HKT)
Errol Lewis says if it really wants to woo black voters away from the Democrats, the GOP better get behind its black candidates
July 9, 2014 -- Updated 2107 GMT (0507 HKT)
Aaron Carroll explains how vaccines can prevent illnesses like measles, which are on the rise
July 9, 2014 -- Updated 0008 GMT (0808 HKT)
Aaron Miller says if you think the ongoing escalation between Israel and Hamas over Gaza will force a moment of truth, better think again
July 8, 2014 -- Updated 2241 GMT (0641 HKT)
Martin Luther King Jr. fought and died so blacks would no longer be viewed as inferior but rather enjoy the same inherent rights given to whites in America.
July 9, 2014 -- Updated 1147 GMT (1947 HKT)
Alex Castellanos says recent low approval ratings spell further trouble for the President
July 9, 2014 -- Updated 0349 GMT (1149 HKT)
Paul Begala says Boehner's plan to sue Obama may be a stunt for the tea party, or he may be hoping the Supreme Court's right wing will advance the GOP agenda that he could not
July 6, 2014 -- Updated 1659 GMT (0059 HKT)
The rapture is a bizarre teaching in fundamentalist circles, made up by a 19th-century theologian, says Jay Parini. It may have no biblical validity, but is a really entertaining plot device in new HBO series
July 7, 2014 -- Updated 1749 GMT (0149 HKT)
Ruben Navarrette: President Obama needs to send U.S. marshals to protect relocating immigrant kids.
July 8, 2014 -- Updated 1903 GMT (0303 HKT)
Norman Matloff says a secret wage theft pact between Google, Apple and others highlights ethics problems in Silicon Valley.
July 8, 2014 -- Updated 2237 GMT (0637 HKT)
The mother of murdered Palestinian teenager Mohammed Abu Khder cries as she meets Palestinian president Mahmoud Abbas in Ramallah, West Bank on July 7, 2014.
Naseem Tuffaha says the killing of Israeli teenagers has rightly brought the world's condemnation, but Palestinian victims like his cousin's slain son have been largely reduced to faceless, nameless statistics.
July 9, 2014 -- Updated 2028 GMT (0428 HKT)
Danny Cevallos says charging the dad in the hot car death case with felony murder, predicated on child neglect, was a smart strategic move.
July 8, 2014 -- Updated 1326 GMT (2126 HKT)
Van Jones says our nation is sitting on a goldmine of untapped talent. The tech companies need jobs, young Latinos and blacks need jobs -- so how about a training pipeline?
July 7, 2014 -- Updated 1309 GMT (2109 HKT)
A drug that holds hope in the battle against hepatitis C costs $1,000 per pill. We can't solve a public health crisis when drug makers charge such exorbitant prices, Karen Ignagni says.
July 7, 2014 -- Updated 1133 GMT (1933 HKT)
Julian Zelizer says our political environment is filled with investigations or accusations of another scandal; all have their roots in the scandal that brought down Richard Nixon
July 6, 2014 -- Updated 1814 GMT (0214 HKT)
Sally Kohn says Boehner's lawsuit threat is nonsense that wastes taxpayer money, distracts from GOP's failure to pass laws to help Americans
July 7, 2014 -- Updated 1526 GMT (2326 HKT)
Speaker John Boehner says President Obama has circumvented Congress with his executive actions and plans on filing suit against the President this month
ADVERTISEMENT