Faith & Freedom Coalition denounces the Obama Administration’s War on Freedom of Speech

Reed submits testimony to the Ways and Means Committee for hearing with IRS Commissioner Today in Washington, FFC Founder & Chairman Ralph Reed submitted testimony to the House Ways and Means Committee, Oversight Subcommittee, before tomorrow’s hearing featuring IRS Commissioner John Koskinen. The Hearing will be held in part to inquire into the IRS’ proposed regulations to regulate political speech of 501(c)(4) social welfare organizations, including the urging of grassroots citizens their members of Congress on pending legislative matters. We will not remain silent on advancing sound public policy on behalf of the American people and will fight these proposed regulations with all the resources at our disposal. TESTIMONY BY RALPH REED, JR. CHAIRMAN, FAITH AND FREEDOM COALITION BEFORE THE WAYS AND MEANS COMMITTEE, OVERSIGHT SUBCOMMITTEE, U.S. HOUSE OF REPRESENTATIVES FEBRUARY 5, 2014 On behalf of the more than 700,000 members and supporters of the Faith and Freedom Coalition, I want to offer this testimony regarding the negative effects and consequences which will result from the proposed regulations by the Internal Revenue Service governing 501(c)(4) organizations.  As currently proposed, the regulations will undermine the ability of social welfare organizations to serve the common good by promoting more effective citizenship and participation in public policy.  In addition, they will have a chilling effect on the ability of millions of Americans to exercise their First Amendment right to freedom of speech and association. Section 501(c)(4) of the Internal Revenue Code became law in 1954, regularizing the tax treatment of organizations seeking to promote the social welfare.  But from the dawn of the  American republic, the ability of Americans to free association and their tendency to form voluntary associations to advance the common good was a remarkable feature of our society.  In Democracy in America, Alexis de Tocqueville’s classic analysis of early America, the French observer noted, “As soon as several of the inhabitants of the United States have taken up an opinion or a feeling which they wish to promote in the world, they look out for mutual assistance; and as soon as they have found one another out, they combine.”  Tocqueville found the uniquely American penchant for voluntary association into civic and social welfare groups astonishing.  Observing the flowering of the temperance movement, he learned that “a hundred thousand men had bound themselves publicly to abstain from spirituous liquors, it appeared to me more like a joke than a serious engagement, and I did not at once perceive why these temperate citizens could not content themselves with drinking water by their own firesides.”¹   From the earliest days of the republic, Americans have combined themselves into voluntary associations for advancing society, combating evil, and encouraging their fellow citizens to join them. Groups organized under Section 501(c)(4) are part of this long and celebrated tradition that is at the heart of American democracy.  They combine like-minded Americans who share similar sentiments—be they for free trade, immigration reform, drug legalization, gay rights, or traditional marriage—so they may influence public sentiment and in many cases enact public policy.  In this respect, it is impossible to imagine the American people exercising their First Amendment speech rights apart from such voluntary associations.  Therefore, any regulation affecting the ability of such groups to organize like-minded citizens should be undertaken with great caution, and only when there is a compelling state interest requiring it. The proposed IRS regulations do not meet that standard.  These regulations are nothing less than an attempt to formalize post-hoc by regulation the harassment and unfair treatment directed at Christian, pro-Israel, and Tea Party organizations by the IRS that took place between 2009 and 2012.  This harassment included the creation of a “BOLO” (Be on the Look-Out) list at the IRS for center-right organizations that slowed down the issuance of their tax-exempt status and subjected them to discriminatory treatment.  Even worse, the regulations will create such an undue burden on the exercise of freedom of speech and association that they are a dagger aimed at the First Amendment and the Bill of Rights. The regulations prohibit the mention of an elected official, such as a member of Congress or state legislature, if that legislator happens to be a candidate for renomination by their party and re-election by the voters, if the communication takes place within 30 days of a primary election or 60 days of a general election in a communication by a 501(c)(4).  While facially intended to prevent communications by 501(c)(4) organizations from influencing the outcome of an election, the regulation would prevent many organizations from being able to influence legislation and public policy at any level of government when a legislative body or executive branch chose to take action in relative proximity to an election.  It makes no difference which end of the political spectrum is involved, a pro-life or pro-choice group would be prohibited from advertising on the Internet, mailing action alerts to its members, posting notices on its website, distributing newsletters, or broadcasting radio or television advertisements urging citizens to contact their legislator if the legislative matter were taking place within 30 days of a primary election or 60 days prior to a legislative election.  All the leadership of a legislative chamber would have to do to insulate its members from public criticism or pressure from social welfare organizations is deliberately schedule votes within the time frame contemplated by these regulations. Does anyone doubt that politicians of both parties will use these regulations in order to stifle and hamstring a full and unfettered public debate of the issues?  This is not a hypothetical situation.   It has already been tested in cases involving virtually identical regulations issued by the Federal Election Commission, regulations the Supreme Court has deemed unconstitutional. In 2004 a number of President George W. Bush’s judicial nominees to the federal courts faced the prospect of filibusters in the U.S. Senate, causing the Wisconsin Right to Life Committee to air radio and television ads urging listeners to contact Senator Russ Feingold and Senator Herb Kohl and ask them to oppose the filibusters.  Senator Feingold was up for re-election in 2004.  When Wisconsin Right to Life sought relief from regulations included in the Bipartisan Campaign Reform Act that restricted the mention of a federal candidate during a prohibited period prior to a primary or general election, the U.S. Supreme Court ruled that the regulations violated the right of WRTL to petition its elected officials and engage in free speech.  The Court found that issue advocacy ads and similar communications could not be categorized as “electioneering” or “express advocacy” unless their content could not be viewed by a reasonable observer as open to any other interpretation.  Specifically, the Court found that the WRTL ads “focus on a legislative issue, take a position on the issue, exhort the  public to adopt that position, and urge the public to contact public  officials with respect to the matter.”  Moreover, they failed to mention Senator Feingold’s opponent, reference a political party, mention the pending election, or state an opinion either way on a candidate’s qualifications for office.  As long as an issue was currently or “likely” the “subject of legislative scrutiny,” referenced the voting record or position on the issue of an elected official, and did not encourage those who received the communication to do anything other than contact the elected official and make their views known on the issue at hand.  ² Similarly, the U.S. Senate voted on October 16, 2002, within days of a national bi-election in which the war on terrorism played a predominant role, on a resolution authorizing military action in Iraq.  If these proposed IRS regulations had been in effect then, no social welfare organization would have been allowed to contact citizens urging a “no” or “yes” vote on authorizing military force if the communication included the names of U.S. Senators standing for re-election—including the posting of a Congressional Scorecard that simply included the Senate vote on the resolution along with other legislative matters.  All any legislative leader would have to do to stifle speech by social welfare organizations prior to an election is schedule votes on pending issues within the black-out period stipulated in the IRS regulations.  It is as though the IRS believes the First Amendment is operational except when it most matters—-when our elected officials are considering legislative issues, and particularly when they are doing so during election years, when the greatest number of citizens is paying attention. To take a timely example, news accounts suggest the Republican leadership in the House has contemplated taking action on immigration reform after the filing deadline for primary elections have passed for certain GOP Members.³  It is not hard to imagine, were these IRS regulations to take effect, for legislative leaders of both parties in subsequent years to schedule votes on controversial legislation (the Affordable Care Act being just one example) in close proximity to primaries or a general election in order to hamstring the ability of outside organizations to notify their members of the pending vote. We strongly believe these regulations are unconstitutional and threaten the free speech and associational rights of millions of Americans.  The IRS seems to believe that the context of a communication, the motives of those making it, the clearly intended effect of a communication based on the electioneering activity of members of a social welfare organization in their capacity as private citizens, and a communication’s proximity to an election somehow make the communication ipso facto electioneering activity, subject to regulation.  But the federal courts have consistently ruled that content of a message, not its context, is decisive.  The Federal Election Commission tried to argue in the 1990’s that the distribution of voter guides, Congressional Scorecards, and candidate forums sponsored by the Christian Coalition constituted an unlawful corporate campaign contribution to certain favored federal candidates during the 1992 elections.  This argument was summarily rejected by a U.S. district court, which found that express advocacy required specific wording such as “vote for,” “vote against,” “elect,” or “defeat.”  It is notable that one of the communications at issue in the Christian Coalition case regarded a mailing that included a Congressional Scorecard listing the voting records of members of Congress, along with an exhortation to be registered to vote and turn out at the polls.  The court found that the Scorecard did not constitute political or electioneering activity.⁴ What is most dangerous about the proposed IRS regulations is they will not simply regulate voter guides, Congressional Scorecards, informational websites, and candidate forums, but any communication by a 501(c)(4) organization that includes the name of a candidate, even when the same communication would be lawful if undertaken by different corporations, such as a media organization.  When Citizens United produced, distributed, and broadcast a documentary about Hillary Clinton prior to the 2008 elections, the FEC found that it violated the prohibition on independent expenditures by a corporation contained in BCRA.  This was despite the fact that the FEC had previously dismissed a complaint against Michael Moore’s production company for airing advertisements promoting Fahrenheit 911, a documentary highly critical of President George W. Bush that appeared in 2004 when Bush stood for re-election.  The Supreme Court found that this prohibition on speech by corporations violated the First Amendment, with part of its rationale resting on the inequitable treatment of different forms of corporations, including publishing houses distributing books, film companies distributing documentaries, and media organizations conducting news analysis.⁵ The IRS regulations function in a similarly discriminatory manner, violating the right of citizens combined into 501(c)(4) organizations to equal protection under the law.  The voter guide that the IRS deems regulated political speech by a 501(c)(4) organization is treated as protected from regulation when distributed by a 501(c)(3) charitable organization.  The same candidate forum subject to IRS regulation when sponsored by a 501(c)(4) organization is treated as unregulated when sponsored by a college or university, news organization, or other corporations.  The proposed regulation also raises thorny questions that will hinder social welfare organizations in carrying out their mission of influencing public policy, legislation, and promoting the common good.  For example, if a candidate forum or debate is jointly sponsored by a university and a 501(c)(4) organization, is the event regulated or unregulated?  Does sponsorship with a 501(c)(4) by a public charity, which is tax-exempt under 501(c)(3), subject it to the same reporting requirements?  If so, then the regulation is even more draconian than anticipated; if not, then it creates a discriminatory policy which violates equal protection principles and should not be enacted at all. One of the greatest dangers of attempts to regulate political speech by federal regulatory agencies is the unintended consequences.  The Bipartisan Campaign Reform Act (BCRA) banned corporate contributions to federal political party committees, arguing that such funds had an inherently corrupting influence on government.  The unintended consequence of this measure was the creation of organizations under Sections 527 and 501(c)(4) of the Internal Revenue Code that accept such contributions and spend them on electioneering activity that were once performed by political parties.  The contemplated IRS regulations are designed to impose stricter oversight and reporting requirements on only these organizations.  But like BCRA, the regulations may have negligible or even the opposite effect: driving such contributions and activity out of 501(c)(4) issue groups and towards 501(c)(3) charitable organizations, which are not subject to the regulations.  It is difficult to see how any state interest would be served by encouraging donors to reduce or end their contributions to social welfare organizations rather than be subject to public scrutiny and harassment by the media or opposing advocacy groups, and instead contribute to charitable organizations.  But that is a likely outcome of this IRS action. Chief Justice John Roberts, speaking for the Supreme Court, has stated, “”we give the benefit of the doubt to speech, not censorship.”⁶  Congress should take the same position as the Supreme Court when it comes to the proposed IRS regulations.  These regulations are likely to increase malfeasance in government, not decrease it, encouraging elected officials to schedule legislative action during blackout periods;  place an undue burden on the right of millions of American citizens to petition their elected officials at every level of government; render the First Amendment inoperable for some citizens but not others, depending upon how they incorporate and combine their civic activities; and subject hundreds of thousands of citizens to unmerited and hostile scrutiny and harassment simply for donating to an issue-based civic organization.  These regulations as contemplated are thus a danger to our democracy and should be withdrawn by the IRS or repealed by legislation. Thank you for your time and attention to our views.

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1. Alexis de Tocqueville, Democracy in America (New York: Alfred A. Knopf, 1945 [orig. 1835]), vol. II, p. 109. 2.  Wisconsin Right to Life v. Federal Election Commission, 546 U.S. 410 (2006) 3. Laura Meckler, “House GOP Sets New Push to Overhaul Immigration,” Wall Street Journal, January 25, 2014. 4. Federal Election Commission v. Christian Coalition, 965 F.Supp. 66 (1997) 5. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) 6. Wisconsin Right to Life v. Federal Election Commission, 546 U.S. 410 (2006)