The Trump Executive Order and IRS Politics

May 9, 2017
posted by Bob Bauer

President Trump’s Executive Order to relieve religious organizations of regulatory limits on their political activities came and went with little stir. It was widely seem to be lacking in content. David French, writing in The National Review, was harsher, pronouncing it "worse than useless."

Aimed at the Johnson Amendment, the Order directs the Secretary of the Treasury not to take "any adverse action" against a 501(c) organization speaking on political issues "from a religious perspective." But commentators correctly observed that an Executive Order cannot undo a statute, and that the Order confines its directives to actions by the Secretary "to the extent permitted by law" or "consistent with law." Translated into its simplest terms, the Order requires the Secretary to do what he can if the law allows it, and because the law in question is the Johnson Amendment, then the President has, in effect, demanded that the Secretary ease restrictions “to the extent permitted” by the Johnson Amendment. This is an unusual way of taking on the Amendment.

But if we look beyond the murky conception behind the Order and its somewhat tortuous wording, and consider what it might mean in practice, then it seems more consequential--at least in the next four years.

“He just believes what people tell him”

David Grant speaking of his father Woody

“Nebraska” (2013)

Paul Ryan contends that a posting here misrepresented the Campaign Legal Center's views on the proposed IRS tax-exempt political activity rules.  He denies that, in pressing for fully disclosed 501(c)(4) ad funding, the Center is hoping to diminish the volume of “attack ads.”  His organization’s “whole” and only point, Ryan insists, is information to the voters about who is paying for the ads.  Quelling negative campaign speech is not their concern, only “promotion of transparency.” An able and energetic proponent of reform, Ryan deserves a further explanation of why someone might reach a different conclusion about the various concerns moving the Center on disclosure issues.

Category: Disclosure, IRS

The flooding of the IRS with criticisms of the proposed rulemaking has shown that, on this issue at least, Washington is experiencing unity across party and ideological lines. The basic complaint, of course, is that the draft rule is too broad, chilling or preventing or just burdening legitimate political speech or activity.  It is a remarkable proceeding.  Activities that have been the targets of soft money reform for years—issue advertising and various other voter education activities—are now being vigorously defended against government regulation. In  the short run, the result may be a rulemaking indefinitely delayed or, in content, much changed.

But, apart from the question of whether or how this draft might be revised to address these critiques, the hostile reception to the proposals may influence the course of the campaign finance debate in other ways.   Here are two:

The FEC Offers a Hand—Or Two Hands—to the IRS

February 28, 2014
posted by Bob Bauer

Under the federal campaign finance laws, the FEC and the IRS are directed to “consult and work together” in making their rules “mutually consistent.” 2 U.S.C. § 438(f). The IRS now proposes new 501(c)(4) tax exempt advocacy rules, responding to campaign finance controversies associated with the old ones, and the time has come for it to “consult and work together” with the FEC.  But the FEC Commissioners don’t themselves “work together” very well on these issues and so, splitting along party lines, they have presented two views to the Service. The difference in viewpoint is predictable—Democrats favor disclosure, Republicans are suspicious of it—but the real interest of these submissions lies more in the strategies behind these presentations than in their substance.

Here, then, are summaries of each set of comments, following by a “translation” into more straightforward terms of what rival camps are really trying to say and do.

It is disconcerting to discover that Brad Smith is disappointed in an earlier posting here. He holds strong views on political law issues but he expresses them clearly, expertly and with principled consistency: he rightly says that he has maintained an independent position against even the expectations, on some issues, of natural allies in the Republican Party. Now Brad expresses frustration that I misrepresented his tone and argument in an exchange with Paul Ryan of the Campaign Legal Center over the IRS's proposed regulation of 501(c)(4) political activity.