No matter the complaints about Citizens United, such as corporations are not people, or “dark money” is a danger, the inescapable conclusion is that Congress had banned and censored political speech.
In expressly advocating the election or defeat of candidates, it's the speech that's protected by our fundamental and paramount law, the Constitution. The source of the speech is irrelevant.
That they used the IRS tax-exempt oversight functions to target Tea Party and conservative nonprofit applicants demonstrates viewpoint discrimination, which is illegal itself. But censorship of any benign political speech is simply not acceptable in America.
A recent Wall Street Journal editorial (“Give Us Your Donors, or Else”) reported on two lawsuits aimed at “a similar animus ... now at work in the states.”
Lawsuits have been filed against New York Attorney General Eric Schneiderman and California AG Kamala Harris over their alleged violations of donor nondisclosure laws.
Schneiderman has been an outspoken critic of Citizens United. Ideologically, Harris is an Obama clone who is sometimes rumored to be a contender for an eventual Supreme Court slot despite her lack of credentials for such a high appointment.
The lawsuits were filed by Citizens United and the Center for Competitive Politics over how Schneiderman and Harris, respectively, have used their positions as state charity officials to demand that nonprofit organizations disclose their donors to the states as a condition to solicit charitable contributions within the state.
Many states require nonprofit organizations to register their federal tax returns, called Form 990s, as a condition to solicit contributions. Federal law, however, treats donor information on 990 Schedule B as confidential.
Civil law prohibits unintentional disclosure of confidential taxpayer information, and it is a felony to intentionally do so.
Besides the IRS’s attacks on conservative viewpoints, emails show that Lerner and her colleagues appear to have violated the confidentiality laws by disclosing donor information.
The IRS recently lost a lawsuit for illegally disclosing donor information of the National Organization of Marriage. Members of Congress have asked U.S. Attorney General Eric Holder to prosecute certain IRS officials for intentionally disclosing confidential donor information, but he has refused to do so.
The lawsuits against the two state AGs allege that their demands chill speech of nonprofits and violate federal nondisclosure law.
Schneiderman uses contorted logic to justify his actions that fly in the face of federal law. He claims they are means of legitimate law enforcement aimed at the potential that nonprofit organizations will engage in political speech protected under Citizens United.
Last year, McLean, Va.-based Free Speech Coalition asked Congress to investigate Schneiderman and Harris for “illegally requiring nonprofit groups to provide the names and addresses of their largest donors before they’re allowed to register with the state to solicit contributions.”
In other words, the AGs are using their licensing powers to extort an end-run on nondisclosure law.
The call for congressional investigation also noted “collaboration between IRS official Lerner and state charitable officials.”
Indeed, before "Lois Lerner" became a household name for targeting political speech, she worked closely with state charity officials to revise Form 990 and in other areas.
State charity officials are notorious First Amendment violators. Four times since 1980, the Supreme Court has smacked down their attempts to limit the speech rights of nonprofit organizations.
The tactics over which Schneiderman and Harris have been sued are even more brazen in the face of federal laws that protect donor confidentiality.
Their acts are clearly designed to intimidate donors and undermine the Citizens United confirmation of First Amendment rights.
The “animus” of the two Democrat AGs’ extortive violations of federal donor nondisclosure law seems to be no different than Lerner’s. It is to censor political speech of tax-exempt organizations.Mark J. Fitzgibbons is co-author with Richard Viguerie of "The law that governs government."