Eight former members of the Federal Election Commission today accused the Internal Revenue Service of attempting to “interfere” with campaign finance regulations enacted by Congress, The Foundry has learned.
The former FEC commissioners signed a letter filed this afternoon as a public comment on the IRS’s proposed new rules on so-called “candidate-related political activity” by nonprofit advocacy organizations qualified as tax-exempt under federal law. Midnight is the deadline for public comment on the proposed rules, which critics say the IRS developed secretly and announced at Thanksgiving to silence some free speech – seven months after the IRS targeting scandal broke.
>>> UPDATES: The full letter is posted below. The final tally as of the midnight deadline was 140,128 comments. Roll Call reports that IRS officials now “brace for at least one public hearing and a possible legal challenge.” The Wall Street Journal reported last night that in topping 100,000 “individual responses from across the political spectrum” the total would be “more than 10 times as many as the regulatory runner-up.”
Signing the letter to the IRS were former FEC members Lee Ann Elliott, Thomas J. Josefiak, David M. Mason, Don McGahn, Bradley A. Smith, Michael E. Toner, Hans A. von Spakovsky and Darryl Wold. McGahn, the most recent member of the FEC, stepped down last year.
Among them, the former commissioners have 55 years of experience in campaign finance regulation, said von Spakovsky, a senior legal fellow at The Heritage Foundation who also manages the think tank’s Election Law Reform Initiative. He said:
“The proposed rules would severely restrict the First Amendment-protected political activity of nonprofit advocacy organizations. It seems obvious that this is the second stage in the Obama Administration’s attempt to silence its critics – first they targeted Tea Party and other conservative organizations to delay their IRS applications for tax-exempt status, and now they are changing the rules to make it almost impossible for them to operate.”
Smith, FEC chairman from 2000 to 2005, told The Foundry:
“The IRS needs to recognize the dangers of embroiling itself in the political process. It just is not equipped to regulate in an area far removed from revenue collection, and that Congress specifically entrusted to the bipartisan Federal Election Commission. If the proposed rules are any indication, the agency is already far out of its depth.”
The proposed changes would affect Section 501(c)(4) of the Internal Revenue Code, which covers nonprofit groups ranging from the Sierra Club on the left to the National Rifle Association on the right. In their letter, Smith, von Spakovsky and the six other former FEC members argue that the IRS lacks the statutory authority to restrict the political activity of such organizations and that the proposed rules do not “respect Supreme Court precedent.”
The commissioners also say the proposed rules would “confuse regulated entities” and “seriously undermine the First Amendment rights and protections of the Constitution.” They point out the “inappropriateness” of the IRS’s proposing “a regulatory scheme almost identical to a provision of federal campaign finance law that the Supreme Court declared unconstitutional” in the Citizens United decision.
The IRS’s actions are “arbitrary and capricious,” they conclude, and the proposed rules “should be withdrawn.”
Midnight is the deadline for public comments on the “Notice of Proposed Rulemaking.” As of earlier today, almost 100,000 comments had been filed, indicating that the response may break a record for the IRS.
Von Spakovsky said a quick review of the comments indicates that the public tide is running strongly against the IRS on the rules.
Some in Congress also have criticized the rules change –Senate Minority Leader Mitch McConnell (R-KY), House Speaker John Boehner (R-OH), and other congressional leaders sent a letter of protest Feb. 5 to the IRS. They wrote that the rules “target the First Amendment rights” of grassroots groups and appear “calculated to take effect just in time for the mid-term elections.”
By a 243-176 vote, the House on Wednesday approved a bill that would delay the rules for a year. Senate Democrats are expected to prevent the bill, sponsored by House Ways and Means Committee Chairman Dave Camp (R-MI), from coming to a vote. The White House has threatened a veto.
This story was produced by The Foundry’s news team. Nothing here should be construed as necessarily reflecting the views of The Heritage Foundation.