IRS Gearing Up To Take On 501c4s Again

During Congressional testimony on Tuesday, John Koskinen defended his tenure as Commissioner of the IRS against stirrings of impeachment among some elected officials. Koskinen maintained that there has been an ample turnover of personnel, as well as disciplinary reviews within the IRS, so that the IRS has been positively rehabilitated since the scandal erupted in 2013.

While the accusation of charges against Koskinen — accused of “misleading the public and destroying documents that were being sought under a congressional subpoena” — was newsworthy, another portion of his testimony was just as important, but went largely unreported by the the media: the future role of 501c4s.

Koskinen framed part of the reason for the IRS targeting scandal on confusing rules, “leaving the nonprofit groups and IRS auditors uncertain about what activity was allowed.” However, this assertion is utterly nonsensical, as the rules that govern 501c4 activity have been in place since 1959. So why the sudden interest in the last couple of years to create (or “clarify”) rules that limit activities by nonprofit organizations? Because of the 2016 election.

Don’t forget — the IRS tried to do a major rewrite in 2014 ahead of midterm elections, but received an unprecedented amount of comments during the IRS rulemaking comment period. If you added together all of the comments on all Treasury and IRS draft proposals from the seven prior years and doubled that you came close to the number of responses received, which was more than 150,000. In light of the overwhelming response on the proposed changes, the IRS decided to delay any rules changes.

So here we are on the threshold of another major election cycle, and we have the IRS announcing it will be stirring the pot. The Washington Times reported that Koskinen hopes, “that we’d be able to provide these proposed new rules early enough next year so that they could — the work on them can be completed well in advance of the election so there wouldn’t be any confusion.” And more: “But I would stress that the work that we’re doing now is focused on clarifying — not changing — but clarifying the rules under which organizations operate.”

Yet this is onerous and unnecessary. These are your social welfare organizations, for which advocacy for “the common good and general welfare” is their primary purpose. They differ from 501c3, which are your charitable organizations; 501c5s, your labor unions; and 501c6s, your trade organizations. The one thing all of these organizations do have in common is that they are all tax-exempt organizations.

501c4s are not tax-deductible precisely because they are not political organizations. They serve to educate by being issue-based. This is protected under free speech; so long as the 501c4 sticks to an issue and not advocate for a particular candidate, it is not considered political speech and therefore it cannot be curbed. They can talk about policies and positions, not people.

These social welfare groups can therefore participate in the political arena as long as they maintain education as their primary purpose. Some examples of 501c4s would be the National Rifle Association (NRA), American Association of Retired Persons (AARP), Americans for Tax Reform (ATR), and the Sierra Club. 501c4s themselves have been around for nearly 100 years, and the regulations that currently govern them have been in place since 1959.

And yet the IRS has been increasingly adamant about clarifying the rules for social welfare organizations that have been in place for more than 50 years. And why only the social welfare organizations — not the unions or trade organizations?

It is well known that on issue-based advocacy, the Republicans have made much better use of 501c4s than the Democrats. So of course, the Democrats want to find a way to disrupt this. Dozens of articles in recent years have documented how this conservative group and that conservative group spent money on political ads, more than the liberal groups — as if that is somehow unfair. It’s perfectly fair and perfectly legal, except when the Democrats are on the losing/receiving end.

This situation is reminiscent of the repeated attempts to implement the “Fairness Doctrine” for talk radio, pushing to give conservative and liberal talk radio shows “equal air time” — because the conservatives dominate that market as well.

The IRS tried reforming 501c4s in 2014 because they knew the Democrats were vulnerable. It didn’t get done then, and 2014 was a disaster year for Democrats. What better way to stifle the ability for conservatives to message than by attacking the methodology? The Democrats, in cahoots with the Obama Administration, are working in tandem with the IRS to change to the way social welfare organizations function by introducing very specific and onerous rule “clarifications”.

By trying to redefine some activities as “political” instead of advocacy, they would be opened to being limited or even banned — activities which serve to provide education for the common good, as they always have.

Critics of the way 501c4s operate, which allow their donors to remain protected, suggest that the 501c4s are somehow gaming the system — using phrases like “secret donors” and “secret activity” to inflame the public against 501c4s. But this is patently untrue.

Political donors are required to be disclosed under campaign finance, but since 501c4s are specifically not political organizations, the donor names do not need to be made public. Their anonymity is protected under the Right of Free Association. Those who are on the receiving end of 501c4 activities to educate the populace during the election cycle, however, are now pushing for this to change in order to reveal citizens identities.

Therefore turning a simple and known definition of a 501c4 into a new and incomprehensible one, has the effect of stifling speech. Even the mere presence of such a proposal will have detrimental affect. Why? The possibility of new regulations becoming permanent rules will have 501c4s worried about potential infractions — especially as we are recovering from the 2013 IRS targeting scandal, especially since the IRS has been known to issue rules that are effective immediately, and even retroactively.

The most egregious part is that we probably won’t have the ability to comment on proposed changes this time around. According to the IRS bulletin (last revised April 2015), the IRS states, “Given the diversity of views expressed and the volume of substantive input, we have concluded that it would be more efficient and useful to hold a public hearing after we publish the revised proposed regulation. Treasury and the IRS remain committed to providing updated standards for tax-exemption that are fair, clear, and easier to administer.”

In other words, they don’t want to hear feedback this time around. What good is a “public hearing?” It’s not, of course, at least for the public. But from the vantage point of the 2016 presidential elections, the effect of curbing or scaring the activity of 501c4s during the upcoming election cycle is beneficial. What organization would risk the potential for increased scrutiny and possible violation from the IRS, knowing that the IRS has been operating in an unjust and partisan matter? They wouldn’t. So the 501c4s would have to be more careful for at least the time being, which plays right into the timing of the important 2016 election cycle activity.

The IRS continues to act in an incompetent manner. That they are targeting 501c4s, and not c5s and c6s, show that there is an inherent bias internally within the IRS. No one can look at the situation and not think that this isn’t being done to have an affect on our political cycles. This is not how the IRS is supposed to function in our country.