U.S. House Democrats recently prevented a Republican effort to expand the power of the IRS. You read that correctly: House Republicans voted in lockstep to grant the IRS new power to enforce a novel ban on political speech and inevitable violation of citizen privacy, while most Democrats voted against the effort.

Due to Democratic opposition, the so-called “No Foreign Election Interference Act” (H.R. 8314) failed to receive the two-thirds majority approval necessary to pass under a suspension of the House rules. However, the September 17 roll call vote garnered 218 votes in favor of passing the bill, with 16 Democrats joining Republicans in support and 181 Democrats voting against the bill. If that level of support remains unchanged if or when the bill is brought back to the floor through regular order, a majority of the U.S. House of Representatives appears likely to pass a clear degradation of Americans’ First Amendment rights in a misguided and ham-fisted effort to prevent funding from foreign nationals in U.S. elections.

H.R. 8314 establishes a conditional ban, enforced by the IRS, on protected speech by prohibiting American nonprofits from donating to political committees, if the nonprofit has received even a single donation from a foreign individual or entity in the prior eight years. While protecting the integrity of our elections is of the utmost importance, this legislation would do far more to prevent Americans from exercising core First Amendment rights than to prevent already illegal foreign interference.

For many nonprofits, the IRS-crafted and enforced conditional contribution ban under H.R. 8314 would function as an outright ban, as even attempting to comply would be prohibitively costly and risky. Nonprofits routinely receive donations without the ability or resources to verify the citizenship status of the donor. Even if an organization does eventually develop the capacity to track and verify such information, it would still have to wait eight years to begin exercising a First Amendment right that only well-funded and sophisticated organizations would have access to under the bill.

Fortunately, some Members of Congress have already been persuaded by First Amendment concerns, albeit not until some politically aligned heavy hitters chimed in at the last minute to explain the ramifications of the measure. Democrats had previously signaled support for H.R. 8314, with only one member of the House Ways and Means Committee, the late Rep. Bill Pascrell (D-NJ), voting against the Republicans’ bill when it passed out of the Committee. But during floor debate prior to the vote, Rep. Linda Sánchez (D-CA), who initially voted for the bill as a Ways and Means member, urged her fellow Democrats to vote against it. While her newfound concern for the bill’s “many unintended and harmful consequences” was in response to opposition from major labor unions, including the AFL-CIO and SEIU, and focused on the bill’s impact on unions and their members, the bill applies to all nonprofits and their members and supporters.

As People United for Privacy explained to the House Ways and Means Committee in May, “Banning currently legal contributions, as the No Foreign Election Interference Act would, is a direct restriction on nonprofit speech and increases the threat to American donors’ privacy.” And, despite Republican lawmakers’ repeatedly stated goals of reining in IRS power and preventing abuse, the Republican bill would expand IRS power to police protected speech, granting the abuse-prone agency substantial authority to decide how to investigate and enforce restrictions that have no relation to its revenue collection mission.

Continuing a theme that began when House Republicans started taking aim at nonprofits, Rep. Sánchez took the opportunity in her remarks to suggest that Republicans should instead support Congressional Democrats’ longstanding crusade to trample nonprofit speech and privacy rights. “If Republicans were serious about removing dark money from politics, the bill under consideration today would be the DISCLOSE Act,” she said ahead of the roll call vote.

In other words, initial Democratic support for H.R. 8314 was likely a result of the measure advancing key policy goals found in the odious DISCLOSE Act. Indeed, H.R. 8314’s conditional ban on speech is effectively the same as the DISCLOSE Act’s “Application of Foreign Money Ban to Disbursements for Campaign-Related Disbursements Consisting of Covered Transfers.” However, H.R. 8314’s speech ban is even broader, covering an eight-year period compared to the DISCLOSE Act’s two-year period. And the Republican-authored ban would be enforced by a non-expert agency, the IRS, instead of the bipartisan Federal Election Commission.

Another key difference is that the DICSLOSE Act’s contribution ban, along with its separate donor disclosure requirements, include an explicit exception for union dues, which explains why unions spoke out against H.R. 8314 but have remained quiet about the DISCLOSE Act. Rep. Sánchez expressed concern that, “if union dues are considered a contribution or gift and the dues are received from a foreign national – that is, a noncitizen – this would restrict the union’s right to give to a political committee. It’s imperative they be able to advocate on behalf of workers and fully engage in the political process.” The Congresswoman is apparently perfectly fine with restricting nonprofits’ “right to give to a political committee,” so long as unions are unaffected. In fact, she suggested to Republicans that she and her Democratic colleagues would support H.R. 8314, if amended “to specifically exclude labor unions from the provisions of this bill that are so punitive.”

While H.R. 8314 does not explicitly require nonprofit donor disclosure as the DISCLOSE Act would, it does require the IRS to enforce the ban on nonprofit giving to political committees, and the agency has previously mandated donor disclosure that was not statutorily required but deemed necessary to enforce the law. In 2020, the IRS commendably ended a longstanding nonprofit donor disclosure mandate after deciding it wasn’t actually necessary – and that the information wasn’t even being used. Under H.R. 8314’s ban, which applies according to the identities of a nonprofit’s supporters, the IRS seems likely to find reason once more to demand the identities of American nonprofit donors who are currently able to remain private.

At the very least, the IRS would have to write new regulations expanding its authority to make determinations about organizations’ compliance by scrutinizing First Amendment-protected activity, something Congress has specifically prohibited in nine consecutive annual omnibus appropriations bills.

This restriction on IRS authority was first included in the federal budget after the IRS brazenly proposed rules, in the aftermath of the 2013 nonprofit targeting scandal, that would have codified the agency’s improper role as the nonprofit speech police and exacerbated the potential for future scandals. While the policy rider has successfully prevented the IRS from pursuing such power in recent years, H.R. 8314 would require the tax collection agency to issue rules aimed directly at the First Amendment rights of nonprofits and their supporters.

In 2010, less than a week after a conservative nonprofit successfully challenged restrictions on its First Amendment right to fund political speech, President Obama urged Congress to “correct” the U.S. Supreme Court’s decision. A bill, he said during his 2010 State of the Union Address, would be necessary to prevent “foreign corporations” and “foreign entities” from deciding the outcome of American elections. When that bill – the DISCLOSE Act – failed, thanks to Congressional Republicans’ consistent defense of First Amendment rights and the FEC’s bipartisan structure making it infertile ground for partisan demands, Democrats turned to pressuring the IRS to curb the political and advocacy activities of nonprofit organizations. Then came the targeting scandal, the attempted power grab via rulemaking, and a Republican-led effort the keep the IRS as far away from political speech as possible.

Fast forward to 2024, when the Republican Chairman of the House Ways and Means Committee accused Democrats of voting “on behalf of foreign actors funneling money into U.S. elections” for opposing a bill that would directly limit First Amendment rights, undermine (if not outright violate) the Supreme Court’s 2010 decision, and gift the IRS expansive authority to investigate and punish nonprofits based on their political speech.

If preventing foreign influence – as opposed to preventing American nonprofits and their supporters from exercising their First Amendment rights – is truly the goal, then neither H.R. 8314 nor the DISCLOSE Act is the right fit. Both proposals are loathsome, would wreak havoc on the nonprofit community, and should be vehemently opposed by all Members of Congress.