Get the IRS out of the speech-police business

Take some debunked IRS talking points. Add misleading context. Now subtract any mention of the role played by politicians and groups advocating for greater regulation of political speech. This recipe for disaster is Lisa Gilbert’s recent Hill article on the IRS scandal, and it begs for correction.

The IRS scandal, for those needing a reminder, concerns the targeting of conservative and tea-party applications for non-profit tax status under section 501(c)(4). These groups had their applications delayed for months or longer and faced inappropriate questioning about their members and political beliefs.

Gilbert begins her depiction of the conditions leading to the scandal by claiming that the IRS faced a “vast increase in workload.” This IRS talking point has been debunked by no less an authority than the Treasury Inspector General for Tax Administration. While applications for 501(c)(4) status have increased in recent years, that increase occurred in 2011 and 2012, after the start of targeting. Emails between IRS staff show that the targeting of conservative groups began by at least March 2010, a year in which the IRS actually received fewer applications for (c)(4) status than it had in 2009.

Gilbert then says that the IRS was working under a “difficult-to-understand standard.” Here she is partly correct: the “facts and circumstances” test is indeed vague and allows too much subjectivity from IRS officials. However, the standard is nothing new. The IRS has employed it for years prior to the scandal. Reforming the standard is a good idea, and the Center for Competitive Politics has offered a clear method for doing exactly that. But the existing standard was no excuse for the IRS deciding to target conservative and tea party applications for extra scrutiny and lengthy delays.

Gilbert then says the IRS suffered from a lack of training and personnel, but that’s no excuse either. Even if the IRS honestly feared Citizens United would lead to political groups applying for (c)(4) status, any college freshman in a statistics course would know to analyze a random sample of new applications to ascertain the extent of the problem. Instead, the IRS flagged any organization with a conservative-sounding name. One can argue the IRS is underfunded and undertrained, but bad math did not cause the IRS scandal. The decision to target groups based on their political beliefs did.

These corrections cover just the first three sentences of Gilbert’s article, and what she fails to mention is just as damning as what she misrepresents. In particular, her article never mentions the tremendous pressure the IRS was under from politicians and interest groups to crack down on conservative non-profits. Her organization, Public Citizen, was one of those sources of pressure, demanding IRS investigations of conservative non-profits and applauding Democratic politicians who did the same. As the scandal shows, the IRS obliged. Instead of reflecting on their role in the scandal, however, Public Citizen has apparently taken up debunked IRS talking points to promote a withdrawn IRS rulemaking that attracted a record-setting number of overwhelmingly negative comments.

A better way forward is to get the IRS out of the business of policing politics altogether. The service’s National Taxpayer Advocate, Nina Olson, agrees, writing  in June 2013 in a report to Congress, “It may be advisable to separate political determinations from the function of revenue collection.” After all, the IRS is not designed to be the speech police and is under control of the president. It’s not surprising people suspect corruption when the service suddenly goes after the president’s political opposition as an election nears.

On the other hand, the agency already tasked with regulating campaign finance, the Federal Election Commission (FEC), is a bipartisan panel with expertise in the First Amendment and campaign finance law. The FEC is far from perfect, but its institutional design is essential for protecting free speech. If the IRS scandal teaches us anything, it’s how easily things can go wrong without that protection. It’s a lesson Public Citizen apparently has not learned, as they continue to push for the IRS to get more involved in regulating political speech. Thanks, but no thanks, Public Citizen. We saw how your advice worked out last time.

Wachob is the McWethy Fellow and policy analyst at the Center for Competitive Politics.