“End Dark Money Act” Conjures Memories of IRS Tea Party Targeting Scandal

January 26, 2023 | Luke Wachob

Imagine you’ve just been elected to Congress. It must be quite the feeling. A victory in a hard-fought campaign. An opportunity to better your community. An endorsement from thousands of your friends, neighbors, and fellow citizens to represent them in the halls of power.

What would you do first? What would be your signature issue?

Colorado Rep. Jason Crow (D) has a simple answer: empower the IRS to target his political enemies and chill free speech.

For the third consecutive Congress, Rep. Crow introduced the so-called “End Dark Money Act” (H.R. 142 in the current Congress) as his first legislative act. The bill – previously included in H.R. 1, the Democrats’ omnibus legislation that included multiple anti-privacy provisions – would allow the IRS to suppress the speech of nonprofit organizations that discuss government and public policy. In so doing, it would open the door to the kind of political targeting and abuse last seen at the IRS during the Obama administration.

In fact, it was that very same IRS targeting scandal that convinced Congress to repeatedly ban the agency from issuing new regulations governing the speech of nonprofits. That history is worth revisiting as Rep. Crow proposes to repeal the ban and drag us back to those dark days.

As the Tea Party movement swept the United States in 2009 and 2010, thousands of Americans decided to form or join new nonprofit organizations dedicated to addressing issues like taxes, government spending, and political corruption. Around the same time, court rulings clarified that these nonprofit organizations had a First Amendment right to speak about candidates for election. That made some politicians nervous.

President Obama and Democrats in Congress responded by pressuring the IRS to crack down on these new ideologically conservative nonprofits. One high-ranking official – Lois Lerner – took up their call. (“So everybody is screaming at us right now, ‘Fix it now before the election. Can’t you see how much these people are spending?’” Lerner commented in 2010.) Throwing caution and due process to the wind, the IRS began subjecting conservative nonprofits to lengthy delays, invasive and absurd questioning – including about their donors – and other forms of heightened scrutiny when applying for tax-exempt status. Some groups were forced to wait years before receiving a decision on their application, effectively silencing their voice in public policy debates.

After the IRS finally admitted wrongdoing in 2013 and Congressional investigations began, the agency came up with a new but still rotten method of suppressing the speech of conservative nonprofits. If the targeting of Tea Party groups was illegal, they figured, why not change the law to make it legal? So, the IRS proposed new regulations for nonprofit organizations that would have codified many of the abusive practices that sparked the original public outcry.

Unsurprisingly, the proposed rules received yet another swift and bipartisan public backlash. An overwhelming percentage of public comments filed on the proposal from individuals and organizations were critical. With the IRS once again demonstrating its desire to limit the speech of nonprofit organizations, Congress faced a choice: either continue to sit back and wait for the IRS to put its thumb on the scales again, or prohibit the agency from changing the pre-existing rules for nonprofits that speak about government affairs and policy issues.

It chose the latter option and rightfully so. While the current IRS rules leave much to be desired, any proposed replacement would almost certainly be much worse for personal privacy and free speech. That’s what the End Dark Money Act hopes to achieve.

“By increasing transparency and accountability in our elections, we are returning power back to voters and restoring Americans’ faith in our democracy,” Rep. Crow said in a press release announcing the bill.

The Congressman’s rhetoric is a far cry from reality. His bill doesn’t return power to the voters; it returns power to the IRS. It doesn’t make government more transparent; it threatens to resurrect the secretive targeting practices we saw under Lois Lerner.

Here at People United for Privacy, we like to say transparency is for government, privacy is for people. Rep. Crow appears to believe precisely the opposite.

Unfortunately, he’s not alone. Numerous bills threatening citizen privacy and free speech are reintroduced every Congress. On January 23, Montana Senator Jon Tester (D) reintroduced two such proposals: the “Sunlight for Unaccountable Non-Profits Act” (S. 17) would publicly expose the names and addresses of Americans who give to nonprofits that speak about the policy views of candidates and elected officials, while the “Corporations Are Not People” proposal (S.J. Res. 3) would amend the Constitution to gut the First Amendment and strip nonprofits of their free speech rights to speak about government affairs altogether.

The good news is these proposals stand little-to-no chance of passing either chamber of the current Congress due to Republican opposition. Their early reintroduction, however, is another reminder of just how badly some in Washington want to violate civic privacy and control political speech. A committed defense of our First Amendment rights to form, join, and support social causes is all that prevents them from getting their way.