The IRS Is The Problem

There are two competing models for reforming the Internal Revenue Service’s oversight of the political activities of certain nonprofit organizations: one put forward by the IRS itself, in the form of a regulatory rule change, a second put forward by Representative David Camp (R., Mich.) on behalf of the House Ways and Means Committee. Neither program is sufficient, because neither reflects the reality behind the recent IRS scandal, which was not the result of murky rules or bureaucratic incompetence but rather of what gives every indication of being deliberate misuse of federal investigatory resources for partisan political ends. That there have not been criminal charges in this matter is probably at least as much a reflection of the highly politicized Department of Justice under Eric Holder as it is of the facts of the case. The problem, then, is that both the IRS plan and the Camp plan assume that the IRS ought to be regulating rather than being regulated.

The United States already has a rather good regulation regarding government oversight of political speech, which is that there isn’t to be any. The First Amendment ought to be the last word on the subject. Asking politicians to oversee the activities of persons inclined to criticize them presents a basic fox-henhouse problem — recall that the Citizens United decision came in response to federal attempts to outlaw the showing of a film critical of Hillary Clinton — so our general bias should be against entrusting any federal agency with such powers. In the case of the IRS, the specific case amplifies the general principle: The agency has no competence in the matter of regulating political speech, and no statutory authority to define away the right of 501c(4) groups to engage in political activities, something to which they are explicitly entitled under the law. Congress has the authority to rewrite the rules about who qualifies as a tax-exempt nonprofit, should it choose to do so, but the IRS plainly does not have the power to regulate away political speech where it is explicitly authorized.

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