Katherine Green Robertson: Alabama must guard against attempts to restrain political speech

  For those who thought the exposure of the IRS as a political weapon was an exaggerated anomaly, think again. During Congress’s Thanksgiving recess, the U.S. Treasury and the IRS quietly published a new rule to change the parameters of permissible activities for 501(c) (4) organizations that could severely weaken these groups leading up to the 2014 elections.

  Currently, a 501(c) (4) organization must be operated "exclusively to promote social welfare." IRS guidance explains that a 501(c) (4) organization must be "primarily engaged in promoting in some way the common good and general welfare of the people in the community."

  Applicants for 501(c) (4) status are often grassroots groups formed to educate the public on one or more specific issues and they can attempt to influence legislation related to the issues the group focuses on. These organizations may also participate in political campaigns and elections, as long as this is not the primary activity of the group.

  The proposed IRS rule would limit 501(c) (4) issue-based advertising within 30 days of a primary election or 60 days of a general election by deeming any ads that reference a candidate as "political." Any communication such as newsletters that reach more than 500 people would also be categorized as political activity if a candidate’s name is mentioned. In effect, the bulk of the educational activities carried out by 501(c) (4) organizations would be deemed political, thus restricting these groups from doing precisely the kind of activities they were formed to do.

  According to National Public Radio, 20 out of the 28 501(c) (4) organizations that spent at least $1 million in the 2012 election cycle were conservative. The fight by Democrats to keep the new rule’s language in the omnibus spending bill has raised eyebrows due to the disproportionate number of conservative groups who operate under 501(c) (4) status. It is surmised that the rule, if it becomes law, will hurt conservative grassroots groups in the mid-term elections–the same groups that would otherwise be out educating the public on the shortcomings of Obamacare and other pressing topics.

  In Alabama, a bill to prevent IRS-like targeting by the state Department of Revenue was passed in the House Tuesday. During debate on the House floor, opponents of the bill claimed that it was being offered merely to appease the Tea Party following an overdramatized non-scandal by the IRS last summer. It was also argued that the bill was needless because it was not filed in response to any allegation of political targeting by the Department of Revenue. While no suggestion of wrongdoing has been directed at Alabama’s DOR, the scrutiny by the IRS that certain groups and associations were subjected to necessitates attention and vigilance to the possibility of political targeting by both state and federal employees of any government agency.

  Alabama must have clearly defined laws in place to address any unconstitutional targeting efforts by state employees using information obtained in the course of their government employment, perhaps as an addition to the state Code of Ethics for public officials and employees. While the federal government has been unable or unwilling to prosecute individual IRS employees for their unconstitutional actions, Alabama law must provide a clear basis on which to criminally punish such behavior at the state level.

  In past legislative sessions, a bill designed to prevent speech-based targeting by government employees might have been fairly labeled as paranoid or fanatical. Today, such a law is regrettably both timely and necessary to assure Alabama citizens that any misconduct of this sort by public employees will not go unpunished.

  About the author: Katherine Green Robertson is senior policy counsel for the Alabama Policy Institute (API), an independent non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, please call (205) 870-9900 or email her at katheriner[at]alabamapolicy.org.

  This article was published by the Alabama Policy Institute.