1250 Connecticut Ave, NW Suite 200 Washington, DC 20036

Transcription

1 1250 Connecticut Ave, NW Suite 200 Washington, DC Hon. Daniel Werfel, Commissioner of Internal Revenue Internal Revenue Service Room 5205 PO Box 7604 Ben Franklin Station Washington, DC Submitted Via Regulations.Gov February 27, 2014 RE: Comments on NPRM Guidance for Tax Exempt Social Welfare Organizations on Candidate-Related Political Activities, 78 Fed. Reg (Nov. 29, 2013) 1 Commissioner Werfel: These comments are filed on behalf of the Institute for Liberty (IFL). IFL is a Washington, DC-based 501C(4) advocacy organization, and as such, is a stakeholder directly impacted by these proposed regulatory changes. We are deeply concerned that these proposed rules would limit various rights, guaranteed protection under the First Amendment to the United States Constitution. Our organization was deeply concerned with the IRS targeting of conservative organizations, a scandal with which we have seen neither a full airing of the facts, nor a full accounting of responsibilities and we have seen no positive change in policies of the IRS to prevent such illegal targeting from occurring in the future. Regulatory changes like those we could support. 1 For a comprehensive list of sources on 501(c)(4) issues, see Prof. Annette Nellen, IRC 501(c)(4) Information, Website: 21 st Century Taxation. Last update: 1/25/14. 1

2 But it is distressing to see that instead of changing policies to prevent such abuses of power from occurring, the IRS is moving in the opposite direction, essentially codifying the vague criteria that were used to inappropriately target activist groups before so that such inappropriate behavior now becomes appropriate! Let me be clear: this rulemaking is nothing more than a blatant attempt to create a set of rules permanently legalizing the harassment of any organization that might stand in opposition to whatever political philosophy is in power in Washington, and recognizing this, groups as diverse and conservative Tea Party organizations are in opposition, as well as progressive groups like the American Civil Liberties Union, the Sierra Club, and the Center for Competitive Politics. The justification for this proposal, that these proposed changes will bring greater clarity under the law, simply doesn t hold water. As a 501C(4) organization, IFL is in constant contact with other C(4)s, and the individuals who manage those organizations. In conversation after conversation, it was reinforced to us that until the IRS began its targeting initiatives in 2010, there had theretofore been no confusion as to 501C(4) operational limitations. It was only when the IRS began its illegitimate targeting of conservative organizations holding applications in abeyance, subjecting conservative 501C(4) organizations to burdensome, intrusive, and wholly-unjustified examinations by questionnaire, and that organizations (and their donors) suddenly found themselves under the microscope of legislators who had mysteriously been granted access to their donor rolls, that confusion began to ensue. In other words, it seems to us that this rulemaking is a solution in search of a problem. To make matters worse, as many commenters have already said to the IRS, these rules not only fix no existing problems, they create many more. As a matter of administrative law, the proposed regulation must be withdrawn because it fails to meet the standards of 5 U.S.C The rule is arbitrary, in excess of statutory 2

3 jurisdiction, and without observance of procedure required by law. 2 Using arbitrary severely hamper the, to this point, legitimate activities of 501C(4) advocacy organizations activities that make 501C(4) organizations different from 501C(3) groups. Political involvement, though not direct election activity, has always been an acceptable part of organizations that operate under 501C(4). This is made evident in the fact that donations to 501C(4) organizations are not tax-deductible, which is an attribute of other organizations engaged in political activity. The proposed rules are directed at the activities of not-for-profit organizations operating under 26 USC 501(c)(4): Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare.... As many other commenters have noted, this term, social welfare, is not defined by statute. In the 1959 promulgation, the IRS excluded candidate-related political activities from the scope of the term. The reasoning supporting this decision was not provided, then or in the 50+ years since, and it is, on reflection, unsupportable. Participating in elections is a legitimate function of social welfare organizations covered by 501(c)(4). By identifying and publicly supporting candidates for office who share their principles, (c)(4)s engage in the kind of constructive deliberation that undergirds a flourishing democracy. Our colleagues at the Center for Competitive Politics had this to say in their comments: In a democracy, political education not only should but must fall within the definition of social welfare and educational activities that constitute exempt activities under 501(c)(4). Nothing in the statute requires exclusion of these functions from the definition of social welfare. (CCP Comments to IRS, p.2) What s more, the rules single out 501C(4)s for activities that are permitted to other nonprofits under the Internal Revenue Code. For instance, a university could hold a 2 Because of its affronts to the First Amendment, the rule also offends the requirement of 5 USC 721(b), that an agency action not be contrary to constitutional right, power, privilege, or immunity. However, this comment is limited to the administrative law issues. 3

4 candidate forum, and not implicate it s 501C(3) status as an educational institution. But a 501C(4) organization does it, and the IRS believes that it would violate their status as an advocacy organization. This was not to be the case, as evidenced by commentary in the 1956 rulemaking: The coincidental advocacy or espousal of a principle or philosophy or an issue, as distinguished from the advocacy of the candidacy of an individual, will not of itself operate to deny an exemption to an organization which is otherwise exempt under this section merely because a particular candidate for public office also advocates or espouses the same principle, issue, or philosophy. [21 Fed. Reg. 460, 464 (Jan 21, 1956).] While this language wasn t part of the final rule in 1959, it certainly demonstrates that these issues were under consideration. Such disparate treatment alone merits serious reconsideration of these rules by the IRS especially when one considers that these proposed rule changes do not apply to Labor Unions, a massive force of money and influence in American politics today. Our organization has always strenuously avoided involving itself in elections, as an added measure of security in terms of fulfilling our obligations under 501C(4). But the confusing requirements of these proposals bring the everyday business of promoting our analysis of public policy proposals into jeopardy. Sometimes elected officials involve themselves in making changes to public policy. Sometimes they decide to make policy recommendations within a 60-day window of an upcoming election. And sometimes they make policy recommendations within a 60-day window of an upcoming election in which they are a candidate. The vagueness of these proposed changes leads us to believe that were an elected official, in the course of his non-campaign work, make a policy recommendation with which our organization, based upon our careful research and analysis, disagreed, we would be hamstrung from voicing our opinions on these policy proposals. That situation is fundamentally counter to the letter and spirit of the law as it currently stands, not to mention the rights guaranteed to us under the US Constitution. 4

5 The end result of these rules will be to force 501C(4) organizations to shutter under onerous and difficult to interpret regulatory burdens (especially for the many small 501C(4)s that are in existence across the country), a violation of their right to free speech, or to force them into the framework of 527 Political Action Committees, exposing their donors to unwarranted public scrutiny (and thus violate their right to free association). These donors, short of engage in direct election advocacy for or against a particular candidate, have a fundamental right to their anonymity, as enshrined in Supreme Court cases like NAACP v. Alabama. Essentially, the IRS is attempting to undo the Supreme Court s decision in Citizen s United via the regulatory process. It is clear that this was one of the motivating factors in the Tea Party Targeting scandal that underlies this rulemaking. And as Citizens United found that the prohibitions on that organization were tantamount to a violation of that organization s free speech rights (and those of its members and employees), this rulemaking, as an illegal regulatory pushback against Supreme Court caselaw, likewise violates the free speech rights of 501C(4)s and their members. If you want to short-change the free speech and free association rights of these organizations, you have to present a compelling public interest in doing so, one that outweighs their right to remain anonymous. You have not done so. We request that you do not change the rules governing 501C(4) organizations. We also request that you have a series of public hearings around the country, so that the American people can present their concerns to your agency in person. Sincerely, Andrew Langer, President Institute for Liberty 5