The Heritage Foundation hosted a panel this afternoon moderated by former FEC commissioner Hans von Spakovsky, entitled “Taxing the First Amendment: Using the IRS to Censor Speech?.” The panel featured the opinions of Cleta Mitchell, election law attorney and legal representative of several Tea Party groups targeted by the IRS, CCP Chairman Bradley A. Smith, National Review’s Eliana Johnson, and Wall Street Journal Editorial Board member Kimberley Strassel. The panelists discussed the ramifications of the proposed 501(c)(4) regulations that were inconspicuously introduced the Friday after Thanksgiving as well as the continuous developments unfolding in the ongoing investigations of the IRS targeting scandal. You can watch the event here.

Mitchell, who submitted comments to the IRS on behalf of Tea Party Patriots and FreedomWorks, discussed how the new rules create a broad new category of “candidate-related political activity,” which functions as an all-inclusive blanket term and would essentially prevent 501(c)(4)’s from participating in a wide variety of activities, including nonpartisan get out the vote efforts and production and distribution of legislative scorecards. She noted that even those nonpartisan activities that don’t mention a specific candidate will be counted as political activity under the proposed rulemaking. This is a significant issue as newly defined “candidate-related political activity” cannot be a “primary” purpose for these groups, if they wish to maintain their tax-exempt status. Mitchell boiled down the new regulations to prohibiting “basically all the things that are done to hold public officials accountable.” Working to keep those same public officials accountable, Mitchell submitted a FOIA request on behalf of the Tea Party Patriots on December 10, 2013, requesting documents pertaining to the creation of the proposed regulations. She was told by the IRS that she would not receive the documents until April 7, 2014, nearly six weeks after the public comment period concludes on February 27.

Smith focused his comments on the campaign finance aspect of the regulations: “These rules have nothing to do with raising federal revenue. This is an effort to regulate campaign finance.” Smith asserted that the new regulations would likely force many 501(c)(4)’s to file as 527’s, a status that comes with an increased reporting burden and donor disclosure requirements. As Smith explained, citizens are less likely to donate to political causes knowing their name will be revealed for fear of intimidation and higher scrutiny by their political opponents, as witnessed in the targeting scandal that continues to embroil the IRS. Smith also commented that the definition of political activity as defined by the Supreme Court in the Citizens United v. FEC case is very specific – “expressly advocating the election or defeat of a candidate” – unlike the definition found in the proposed regulations, which lacks precision. Using the IRS to restrict campaign speech is a last resort by those who wish to further regulate political speech, Smith said, pointing to the (many) failures of the DISCLOSE Act in Congress and the attempts by activists to tighten campaign finance regulations through the FEC. Smith joked that the new definition of “candidate-related political activity” proposed by the IRS is actually “candidate-related activities, political,” or CRAP.

For their part, Johnson and Strassel, both of whom have been covering the IRS since the scandal broke last May, spoke to what they’ve learned while covering the events unfolding at the IRS. Johnson underlined the connections she has found between the scandal and the proposed rulemaking. Working on the premise that top IRS officials are doing the bidding of Democrats looking to stifle the voices of political opposition, Johnson brought up the remarks of former IRS Acting Commissioner Steven Miller, who said the IRS felt that there were no problems with the current regulations, but that the Agency decided to reevaluate and rework them after complaints from Democrats in Congress. Strassel focused on the true duration of the IRS targeting, saying it “began well before last spring” when the news originally surfaced. Going through a variety of examples from as early as 2008, Strassel made the case that the rhetoric of “shady Republican 501(c)(4) groups” being pushed by the pro-regulation community had proliferated, creating an accepted stigma that anonymous political donations are inherently dubious. Strassel pointed out that this culture of suspicion led to the targeting of conservative groups by the IRS without necessitating a direct phone call or order from the Obama Administration to the Agency, as many Republicans suggested when news of the targeting scandal first broke.

Each contributor on the panel mentioned the record-breaking number of public comments on the proposed regulation. Currently, almost 70,000 individuals and organizations have commented to the IRS, the vast majority of which are overwhelmingly in opposition to the proposed rulemaking. As the comment period rapidly draws to a close, the number of public comments has been significantly increasing in volume daily. The deadline for submitting comments on the IRS rulemaking is Thursday, February 27. For more information on the rulemaking, check out CCP’s continually updated resource page, and to submit a public comment, please click here.