Next up: ‘Citizens United v. IRS’?

Introduction

Four years ago, the Supreme Court’s Citizens United v. Federal Election Commission decision remade the rules for how political campaigns are waged.

Could a Citizens United v. Internal Revenue Service case be next?

Yes, says David Bossie, the outspoken president of Citizens United — if the IRS enacts plans to restrict how certain tax-exempt nonprofit groups spend their money on politicking, as the agency says it may do.

“I can commit with certitude that Citizens United will not sit by while any government agency tries to violate our 1st Amendment rights,” Bossie told the Center for Public Integrity today. “We have a proven track record of winning, and we’re not afraid to take the fight to them. You’ll see a Citizens United v. IRS.”

Bossie added that while it’s “too early” to discuss specific legal strategy, Citizens United is willing to “pull out all the stops” to fight any Obama administration effort to pinch nonprofit groups’ ability to engage in politics.

Bossie’s assertion comes on a day when Citizens United, a conservative advocacy and media organization, submitted formal comments to the IRS warning the agency to “withdraw” recently proposed regulatory revisions affecting 501(c)(4) “social welfare” nonprofits. Under current law, such nonprofits may advocate for and against political candidate so long as this doesn’t constitute its primary purpose and they don’t directly coordinate communications with campaigns.

Campaign finance reformers have complained about what they see as “hands-off” IRS treatment of some of these groups which they argue are highly focused on politics, not “social welfare.”

Such nonprofits, which are not required to disclose their donors, have pumped hundreds of millions of dollars into federal political races since the Citizens United v. FEC decision allowed corporations — including nonprofit corporations — to raise and spend unlimited amounts of money during elections.

Conservative nonprofits including Karl Rove-founded Crossroads GPS and Koch brothers-backed Americans for Prosperity rank among the biggest political spenders, although liberal outfits such as the League for Conservation Voters and the Planned Parenthood Action Fund have also spent hefty sums.

The IRS’ proposed rule changes would define the term “candidate-related political activity” — and prohibit 501(c)(4) groups from engaging in such activity.

Potentially on the no-no list for 501(c)(4) nonprofits, under the proposed rules changes: airing “issue ads” that feature candidates in the weeks before an election, launching get-out-the-vote and voter registration efforts and disseminating voter guides. Such nonprofits could also be barred, beginning 60 days before a general election, from conducting events at which a political candidate appears as part of the program.

Campaign finance reform advocates generally consider strict IRS rules on politically active nonprofits essential to ridding U.S. politics of money that can’t be traced to its original source.

But as far as Citizens United is concerned, 501(c)(4) groups’ political activity of any sort “falls within being ‘social welfare,'” said Michael Boos, the group’s vice president and general counsel.

Boos acknowledged the IRS probably won’t concur. If so, he said, Citizens United would be satisfied with the agency offering “safe harbor” to 501(c)(4) groups, which would involve the IRS more narrowly defining what it considers political activity and allowing groups to spend an average of 60 percent of their money or more on “social welfare” activities in order to qualify for tax-exempt status.

In its formal comments to the IRS, Citizens United further argues that the U.S. Treasury Department and IRS have “usurped Congress’ law making powers because there is simply no statuary authority” for the restrictions its proposing.

Upon issuing its proposed guidelines in November, the IRS noted that there are “number of steps in the regulatory process that must be taken before any final guidance can be issued.”

The deadline to submit comments on the IRS’ proposed changes is Thursday.

And given the sensitivity of the issue, and the generally slow pace of high-profile regulatory changes of this magnitude, the IRS could take months to reach a final decision. And it’s unlikely any decision would affect the 2014 election cycle, in which Democrats and Republicans are already locked in a bitter — and historically expensive — battle for control of the U.S. House and U.S. Senate.