IRS Chief Refuses Sheldon Whitehouse’s Demand to Police Speech

December 2, 2022 | PUFP Staff

Should a nonprofit organization lose its tax status if it hosts an event without masking and social distancing? Should Americans who give to social causes be tracked in a central database operated by the IRS?

If you answered yes to these questions, you may be on the wrong website, but you also have a powerful ally in the halls of Congress. His name is Sheldon Whitehouse and he’s on a crusade to strip First Amendment rights from Americans who disagree with him.

In his new book, The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Courtdescribed by Publishers Weekly as a “polemic” that “strikes a fiery tone” but “doesn’t break new ground” and “works best at establishing its author’s partisan bona fides” – the Senator from Rhode Island rails against conservative nonprofits for daring to protect the privacy of their members while speaking out about pending judicial nominations and court cases. The horror.

Notably, the Senator is not so averse to using his own considerable influence to try to capture the federal bureaucracy and muzzle groups that stand in his way. The Daily Signal reports this week on 176 pages of newly revealed correspondence between Whitehouse, other Senate Democrats, and the IRS in which the Senators repeatedly attempt to pressure the IRS into targeting nonprofits and taxpayers for their political views.

Some of the complaints are simply absurd:

In a letter dated Jan. 19, 2021, Whitehouse asked IRS Commissioner Charles Rettig to revoke the tax-exempt status of Turning Point USA because the conservative organization held an event at then-President Donald Trump’s Mar-a-Lago club without masking and social distancing…

“Tax-exempt status provides a substantial benefit to charitable organizations and reflects the federal government’s endorsement of an organization’s activities,” Whitehouse wrote to the IRS chief. “Organizations that knowingly put in danger minors entrusted to their care should not enjoy the benefits of tax-exempt status. Accordingly, I urge the IRS to review whether it should revoke Turning Point USA’s tax-exempt status.”

But others are more serious. On one particularly troubling occasion, a group of Democratic Senators, led by Amy Klobuchar and including Senator Whitehouse, urged the IRS to repeal a recent rule change protecting Americans’ privacy when giving to nonprofits. The new rule shut down an outdated and unnecessary practice of warehousing the names and addresses of donors to certain types of nonprofit organization inside the IRS.

The rule change was good news for the American people, but it was also the path of least resistance for the IRS. The agency did not use the information for any tax collection or law enforcement purpose and was prohibited by law from revealing it to anyone. When an investigation made it necessary for the IRS to obtain some donor information, agents had other, more efficient means of obtaining it. The new rule simply allowed the IRS to stop spending resources collecting and securing sensitive information that it had no use for.

To some politicians, however, any reform that makes Americans feel even slightly more comfortable supporting groups that criticize their views and actions in office is a bad thing, no matter how useless the old system was.

“[T]his IRS rule is a major step backwards for transparency and will allow dark money to continue to corrode our political system,” the Senators wrote, ignoring the fact that the IRS was already prohibited by law from disclosing the personal information of nonprofit donors to the public.

Fortunately, then-IRS Commissioner Charles Rettig set them straight. In his response to Senator Klobuchar, Rettig repeated the agency’s public explanation of the rule change and made clear that the IRS is not the Senate’s speech police:

We determined it was not necessary to the efficient administration of the internal revenue laws for such tax-exempt organizations (those not described in Sections 501 (c)(3) or 527 of the Code) to report annually the names and addresses of substantial contributors; however, all tax-exempt organizations must continue to report the amounts of contributions from each substantial contributor, maintain the names and addresses of their substantial contributors in their own books and records, and provide such information upon request…

Congress has not authorized the IRS to enforce campaign finance laws. In addition, Section 6103 of the Code strictly limits the IRS’s ability to share tax information with other federal agencies. Accordingly, the IRS cannot disclose any names or addresses of substantial contributors to other federal agencies for non-tax investigations, including campaign finance matters, except in very narrowly prescribed circumstances. Unauthorized disclosures may lead to civil and criminal liability.

The responsibility for enforcing campaign finance laws rests with the Department of Justice and the Federal Election Commission, a bipartisan agency designed specifically to navigate the unique challenges that arise when policing areas of the law that touch so closely on our core First Amendment rights and have the potential to sway election outcomes. Precisely because the FEC is a bipartisan agency with expertise in the constitutional ramifications of its work, however, it has refused to go along with the extreme demands of Senators Whitehouse, Klobuchar, and other opponents of fundamental free speech rights. That’s why we see so many efforts to pressure the IRS, SEC, and other non-expert agencies to usurp the FEC’s role.

The IRS fell for that ploy a decade ago and paid the price. Loud and persistent calls from President Obama and Senate Democrats persuaded IRS officials to target nonprofits for extreme scrutiny and extended delays in processing routine paperwork in the lead-up to the 2012 election based only on their names and political beliefs. When the agency’s misdeeds became public in the now-infamous IRS Tea Party targeting scandal, the result was a rash of resignations, a series of high-profile investigations into the abuse, a media firestorm that raged for years, and a still-unrepaired loss of public trust in the IRS.

To avoid a replay of that sorry affair, let’s hope Commissioner Rettig’s replacement follows his lead in telling Whitehouse and friends to take a hike. The IRS is a revenue collection agency. It must never become the speech police.