When it comes to silencing political opposition, the Obama administration often wields a big stick – say, for example, using the Internal Revenue Service (IRS) to block the nonprofit applications for organizations deemed too “patriotic,” or subjecting these organizations to painful and unnecessary audits.
On other occasions, however, the administration opts for a more subtle approach, tweaking a few words here and there in federal code. (Remember, the president has said he “has a pen” and is not afraid to use it.) But here’s the thing: When it comes to rewriting federal regulations small changes create big problems.
And this is the message Judicial Watch brought to the Office of Management and Budget (OMB) in a letter requesting that the agency direct the Treasury Department to withdraw a new IRS proposal to redefine “political activity” in a way that could place a “substantial … record-keeping and collection of information burden” on more than 100,000 nonprofit organizations.
Here’s what the Obama administration attempted to do: Under a new Notice of Proposed Rulemaking, Guidance for Tax-Exempt Social Welfare Organizations on Candidate-Related Political Activities (NPRM), the Obama IRS seeks, without the approval of Congress, to replace the decades-old definition – “participation of intervention in political campaigns on behalf of or in opposition to any candidate for public office” – with a new term – “candidate-related political activity.”
It may seem to some that this slight change in phraseology would yield insignificant results, but this is far from the truth.
As noted by The Daily Caller, “Communications and activities including voter registration drives and publishing voter guides, among others, are now classified as political activity. Grants and donations that 501(c)(4)’s give to other nonprofits are now subject to new record-keeping and increased scrutiny to prevent the money’s use for broadly-defined political activity.”
And then there’s the paperwork.
The Paperwork Reduction Act of 1995 (PRA) submission filed by the IRS to support its proposal redefinition does not analyze the substantial burden this new term will place on nearly all of the more than 100,000 501(c)(4) organizations, and is therefore fundamentally flawed.
(The letter to OMB was signed for Judicial Watch by attorney Alan P. Dye, a recognized national expert in non-profit law and government regulation, of the law firm Webster, Chamberlain & Bean, LLP.)
Let’s discuss some of the “flaws” in the IRS PRA submission as noted in our letter:
- First … the Service [IRS] fails to mention, let alone review and evaluate as required under PRA, the burden of the collection of information arising out of its replacement of long-standing language … The new term … includes several activities … that under the long-standing concept would not be treated as political activity … Although the Service is now proposing to regulate these activities (by limiting their amount), it does not analyze the burden arising from its landscape-changing definition.
- Second, “burden” is broadly defined in the PRA to include all of the “time, effort, or financial resources expended by persons to generate, maintain, or provide information to or for a Federal agency,” including any time or other expenditure needed to review instructions, acquire technology, or search data sources … Yet, the Service has completely ignored these components of burden.
- Third, the new inclusion of volunteer hours imposed an additional layer of recordkeeping and burden upon these non-profit organizations, many of which rely heavily upon local volunteers … Anyone who has worked with volunteers knows that recordkeeping can be notoriously difficult – how many volunteers are going to want to fill out time cards for their service? How many volunteers are going to be turned off from civic engagement due to this paperwork burden?
“In short,” the Judicial Watch letter concludes, “the Service has failed to address the collection of information arising out of the NPRM’s new term … Consequently, the Service has not reviewed and evaluated the substantial burden this new term will place on nearly all of the 100,000 501(c) (4) organizations … [W]e respectfully request that the Director disapprove of the collection of information contained in the NPRM ….”
And while this could impact organizations on both sides of the political aisle, according to some members of Congress, given the Tea Party hate-fest ongoing at the IRS, it is clear the Obama administration intended for this policy to hamper conservative organizations disproportionately.
Per CBS News:
The IRS’ proposed changes to requirements for tax-exempt “social welfare” organizations, which would put new limits on their political activity, are the latest attempt by the federal agency to target conservative groups, Republican lawmakers said Tuesday.
The regulations, House Ways and Means Committee Chairman Dave Camp, R-Mich., said in a hearing, were “drafted in a manner, in my view, to shut down tea party groups.”
While the new rules were proposed in November, in the wake of revelations last year that the IRS unfairly scrutinized certain conservative and progressive groups, using certain key words. However, Camp said the regulations were in the works as far back as 2011, when the inappropriate targeting was taking place.
Rep. Charles Boustany, R-La., chairman of the Ways and Means’ oversight subpanel, similarly said that the new rules would “essentially codify the continued targeting of these very same groups” that were previously targeted.
In short, the Obama IRS wants to kill the conservative movement with paperwork and regulation. These new IRS rules violate the law and could, through First Amendment-killing paperwork, freeze millions of patriotic volunteers – from both sides of the political divide. President Obama and his administration ought to start obeying the law rather than rewriting it.
Judicial Watch President Tom Fitton is author of the NY Times best-seller “The Corruption Chronicles” and executive producer of the documentary “District of Corruption.”