In a March 5 entry in his “More Soft Money, Hard Law” blog, Bob Bauer distorted and then criticized the Campaign Legal Center’s (CLC) position in the ongoing IRS rulemaking regarding “candidate-related political activity” by tax-exempt organizations. CLC filed its IRS comments jointly with Democracy 21, Public Citizen, and Rep. Chris Van Hollen (D-MD). While CLC respects the right of anyone to criticize our legal and policy positions, such criticism should be based on our actual views, not on straw man distortions of our positions.
Bauer wrote: “That key supporters of a strong IRS rule have among their objectives a cleansing of political speech is evident from what they have said on the subject so far.” Bauer continued: “The Campaign Legal Center, for example, is troubled that too much candidate-related activity would be permitted outside these 30 and 60-day periods, because it is so often in the form of ‘attack ads.’” He went on to quote a few more CLC references to “attack” ads in our rulemaking comments, suggesting that CLC’s goal is to diminish “negative” speech.
Contrary to Bauer’s claim, however, CLC is not seeking a “cleansing of political speech” through the IRS rulemaking. This is just a red herring to draw attention away from the whole point of our IRS comments: that the sources of funding of political speech should be disclosed no matter what organizational form the speaker uses. There is no reason that the funders of a campaign ad run by a Super PAC or a 527 should be required to be disclosed by law, but the funders of the very same ad kept secret from public view when the ad is run by a 501(c) organization. Our references to attack ads in our IRS comments were simply observations of the types of political ads that big-spending 501(c)(4) groups have aired in recent years that are indisputably and glaringly campaign ads, no matter what legal form the sponsoring organization takes. If you doubt the accuracy of this observation, check out the YouTube Channel of the 501(c)(4) group Crossroads GPS. It’s full of candidate attack ads and, according to the Center for Responsive Politics, Crossroads GPS spent more than $70 million airing such ads during the 2012 election cycle.
This leads to CLC’s actual objective in the IRS rulemaking: promotion of transparency. We don’t care that Crossroads GPS spent more than $70 million on candidate “attack” ads in 2012. We care that Crossroads GPS and other groups like it did not disclose to the public where the money to pay for the ads came from. We’d care just as much if Crossroads GPS and other 501(c)(4) groups spent their money on affirmative candidate support ads. This is because CLC agrees wholeheartedly with the Supreme Court’s view, as stated in Citizens United, that disclosure is vital to the working of our democracy, that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Notwithstanding the Court’s view, big-spending political groups like Crossroads GPS are evading disclosure laws by hiding behind social welfare 501(c)(4) status, rather than registering as political organizations. And the IRS has been letting them get away with it.
We explain our objective of promoting transparency in the introduction and throughout the body of the comments we filed with the IRS. And we urge the IRS to adopt rules ensuring that groups spending huge sums on candidate-related political activity cannot continue evading disclosure laws through the simple expedient of claiming 501(c)(4) tax-exempt status. Instead, under the rules we propose to the IRS, groups like Crossroads GPS would be free to continue spending as much as they want on candidate election ads—negative and/or positive—but they’d be required to claim tax-exemption under Section 527 of the tax code and comply with the attendant disclosure requirements.
That’s our position and a lawyer as distinguished and able as Bob Bauer surely knows that. So next time let’s skip the red herrings and go straight to the real issue.