When money and speech collide

The Internal Revenue Service is proposing new rules for social welfare organizations, the secret-donor, nonprofit, tax-free groups partially responsible for the explosion of money in politics.

The IRS, you’ll remember, has taken heat from some quarters for its ham-handed scrutiny of some of the groups, also known as 501(c)(4)s. The current rules say the groups can’t be directly involved in candidate elections but may engage in politics “so long as that is not (their) primary activity.”

Deciding what is, and isn’t, a “primary activity” fell to IRS workers, who now stand accused of applying unfair standards to conservative 501(c)(4)s.

To address the problem, the IRS has proposed new rules designed to make those judgment calls a bit easier. Predictably, politicians have responded angrily. Sen. Pat Roberts, for example, has sponsored a bill delaying the new rules for a year.

In news releases, Roberts and other GOP senators say the proposed rules would let the IRS infringe on the free speech rights of social welfare groups.

They have interesting company.

The American Civil Liberties Union also objects to the new rules.

“Social welfare organizations praise or criticize candidates for public office on the issues,” it recently wrote. “They should be able to do so freely, without fear of losing or being denied tax-exempt status.”

Did you catch that? The ACLU, like Roberts and his colleagues, is saying the First Amendment doesn’t just protect free speech. It protects

free speech.

This will come as a shock to thousands of organizations that exercise free speech rights

pay the taxes they owe. Newspapers, for one. Film producers. Magazines. TV stations. Websites. Record labels. Corporations. People.

The Constitution simply guarantees you the right to stand on a corner and speak. It does not guarantee you, or anyone else, the right to speak

.

The only way to solve the First Amendment problem is to abolish tax exemptions for social welfare groups. If you really want the IRS out of the business of judging political speech — which you should, by the way — you must eliminate the tool, not tinker with the instructions.

Pat Roberts won’t say that because politicians like secret, tax-free cash. But the ACLU won’t say it either, and here’s why: It, too, is a 501(c)(4). Its donations can be secret and are tax-free to the group.

As is usually the case, when constitutional rights collide with money, money wins.

This story was originally published February 20, 2014 at 6:15 PM with the headline "When money and speech collide."