Former Federal Election Commissioner Bradley Smith wrote something important in the opinion section of Tuesday's Wall Street Journal concerning the perilous state of the First Amendment in contemporary American society: "The IRS scandal is part of a long-term assault on First Amendment rights. Thanks to 'campaign finance reform,' citizen groups must navigate a maze of government paperwork and apply to the IRS for a tax license to speak on politics. People literally need a lawyer to figure it out, and not just any lawyer, but one from the highly compensated and mostly Washington, D.C.-based bar practicing 'political law.'"
What began with the Supreme Court's Buckley v .Valeo decision in 1976 as a praiseworthy effort to curb the appearance of corruption of government by excessive or inappropriate campaign contributions has in the succeeding decades become a giant toolbox full of blunt hammers by which special interest groups and their sympathizers in government seek to limit the political speech of their critics and opponents. Put another way, campaign finance law has been turned into a weapon against the First Amendment's guarantee of freedom of political speech. That ought to be a matter of deep concern for all Americans regardless of their ideological orientation.
At its most basic, the IRS scandal was precipitated by the coincidence of will and opportunity to use the tax agency to silence Tea Party groups, other conservatives and evangelical advocates during the 2010 and 2012 campaigns, or to put them at a disadvantage using the campaign finance regulatory section of the tax code. As Smith notes, the targeted applicants for tax-exempt status were applying for recognition as 501(C)(4) groups. That tax status would allow them to participate in political advocacy but without having to reveal the identities of their donors.
Anonymity is the cardinal sin for campaign finance zealots because they don't accept that some participants in political debate require the protection afforded by keeping secret their names. The Supreme Court has protected political anonymity since its 1958 decision occasioned by the NAACP's need to protect its donors from retaliation by Southern racists. There is a direct link between that case and the IRS scandal because Democrats and their allies in the liberal media want Tea Party, conservative and evangelical applicants either rejected outright or forced to accept classification as 527 groups instead of 501(C)(4)'s.
Why? Because, as Smith explains, "this would increase their regulatory burden by requiring them to file quarterly or monthly reports detailing their receipts and expenditures. It would also force them to reveal personal information about their supporters and members, enabling government retaliation and laying the groundwork for unofficial harassment of those supporters." In 1958, it was Southern racists clamoring against donor anonymity. Today it's liberal and leftist activists who want to mobilize retaliation against donors who help fund their political opponents.
Congress — which is barred by the First Amendment from interfering with freedom of political speech — should repeal the IRS's authority to take any tax action based on the political advocacy of individuals or associations of individuals.