On Tuesday, Public Citizen, an advocate for more campaign finance regulations, released the results of a poll aimed at capturing the opinions of likely voters about government regulation of political activity. The poll found that 86 percent of respondents believe it is “important to have clear rules in place concerning the political activity that non-profit organizations can and cannot do.” This result is highly surprising – as it is not 100 percent.
Who is in favor of unclear government rules? Hasn’t the scandal at the IRS taught us that regulations need to be clear in order to be enforced fairly? Public Citizen is correct when they say that there is broad bipartisan agreement on this issue. As our analysis of both a public comment sample and all substantive comments by organizations, public officials, and experts on the IRS’s stalled rulemaking governing the permissible activities of 501(c)(4) social welfare organizations found, it is not simply agreement among Republicans and Democrats on this point, but agreement among pro-regulation organizations, like Public Citizen, and pro-free speech organizations, like those of us here at the Center for Competitive Politics. Not to mention a broad swath of other organizations – from the American Motorcyclist Association to the National Retail Federation to a coalition of seven of the country’s largest labor unions – all of which found the IRS’s current rules to be vague and convoluted, and the proposed rules to be even worse. As Public Citizen’s Congress Watch Director Lisa Gilbert put it with regard to the current IRS rules, “what we’re doing right now doesn’t work.”
The real question is not whether we should have clear and fair regulations regarding the definition of political activity. What we need to ask is how far should the IRS go to restrict political speech? After all, if the IRS prohibited all nonprofit organizations from advocating for any political issue, that would be a clear and fair rule. It would also be a terrible blow to the First Amendment – it would prevent all speech by every organization from the NAACP to the NRA to the Sierra Club to the Boy Scouts. Every public policy issue has a political component and, as such, the IRS could – with great clarity mind you – prevent all public debate not by candidates.
Despite what Public Citizen press releases might have you believe, however, calls from the public for more “clarity” in regulation are not akin to calls for more restrictive regulatory regimes. Wanting clarity is not equivalent to wanting the IRS to police the speech of every nonprofit designation and punish the organizations that advocate for their cause “too much.” On the contrary, we do not need to choose between “clear and fair rules” governing political activity and the free and open debate that allows our democracy to flourish.
There is a disconnect, therefore, when an additional question from this Public Citizen survey asks Americans to do just that – choose between protecting free speech and having clear rules to prevent a corrupt political system. Unsurprisingly, after multiple questions about the importance of clear rules, voters still voiced their support for “clear rules.” The question, however, fails to give Americans another option: have clear rules, like those proposed to the IRS by CCP, which would take decisions about what is “political speech” out of the hands of the IRS entirely, and simultaneously allow for unfettered political debate.
So where would public opinion really draw the regulatory line on political speech? Does the public want more IRS involvement or less? This poll fails to answer those questions. By focusing on clarity in future rules, the survey fails to capture public opinion about the scope and substance of the existing or proposed rules – and that is where the real disagreements exist.
And when it comes to the fundamental issues in campaign regulations, the value of public opinion is greatly diminished; most Americans get lost in the regulatory weeds. As Democratic pollster Celinda Lake (who heads one of the firms that conducted the Public Citizen poll) noted, the survey “didn’t need to measure knowledge [on this issue] because nobody’s got any.” This is not to say that voters are stupid. It is simply to point out that the very significant distinctions between 501(c)(3)s, 501(c)(4)s, 527s, and Super PACs are lost on Americans who don’t have the time, effort, or patience to wade through the regulatory muck.
That is why reliance on First Amendment principles and values are so important. This poll amply demonstrates the value of clarity among voters – it is a value shared here at CCP. But it fails to test the genuine issue at stake in debates over political activity. Should the IRS regulate the political activity of nonprofits at the cost of less democratic debate? We believe the answer is clear: No.
