Francis Hill is calling for the IRS to answer for its actions in a poorly conceived and inexplicably protracted investigation of “partisan”  activity by the NAACP.   After almost two years, the IRS abandoned its case, one built around nothing more than a speech, critical of President Bush, delivered at a national convention.  The Service seemed to have resolved its concerns on little more than a view of the tape.  Hill wonders, rightly, why a tape viewing should have required two years’ time.  She argues that the IRS has so damaged its credibility that it is less able to pursue the obvious cases of improper partisan misconduct by tax-exempts.

     How much room does the IRS have, in fact, for the restoration of trust in its mission?  The very regulatory mission is not credible.  On a test that Hill concedes is complex, the government scans the landscape of political speech and determines on which side of a gauzy line particular statements or actions fall.  At most, as Hill recounts, the IRS can make its thinking a bit clearer, maybe raising a bit the chance that groups seeking to “comply” can judge for themselves where they stand in relation to this “line.”  That is all it can do, and it is not much.  Whether the line is crossed—whether legal speech on issues has become illegal partisan “intervention”—depends in some most inscrutable fashion on all the facts and circumstances, determined by the government after the fact, more or less within its discretion. 

     The progressive community has not done well on this issue.  This is because many progressives cannot help distinguishing between the speech they like and that which they don’t, and they are prepared, for example, to stand firmly with the NAACP against the IRS while cheering the Service on in the investigation of “conservative” churches.  It is true that in some particular cases, the “intervention” under attack may come off as crude, more obviously at odds with IRS guidance.  But it is also true that, in those same cases, the progressive objection does not arise from a dainty solicitude for the law but from a hardy dislike for the positions espoused by these churches or their leadership.  And it is true, also, that where the IRS has moved against clerical speech friendly to the progressive program, as in anti-war speech, the objections have been muted or set aside altogether.

     This morning, the New York Times reports that the IRS has revoked the exemption  of a tax-exempt with an anti-abortion mission, Operation Rescue West.   Stephanie Strom, "Anti-Abortion Group Loses Tax Exemption," New York Times (Sept. 15, 2006).  It seems to have acted with considerable clumsiness, having solicited tax-deductible contributions with the promise of applying the funds to the “defeat” of John Kerry.  The article also relates how the organization was pursued by another, Catholics for a Free Choice, eager to do damage, with legal action, to an adversary on the issue of abortion rights.  Catholics for Free Choice complained to the IRS about a truck operated by Operation Rescue West at the site of the Democratic Convention and carrying a “large photo of a late-stage aborted fetus and the words ‘Kerry’s Choice’.”  An official of Catholics for Free Choice is quoted as saying: “It could not have been a more clear or blatant violation of the I.R.S. rules.”  She did not also say, which is what she meant, that it was a clear and blatant irritant to her organization and its members, who hold the opposing point of view.

     One wonders: what about a church or other tax-exempt nonprofit operating such a truck at the 2004 Republican convention, displaying a large photo of American soldiers under fire in a Baghdad neighborhood, or of the site of a suicide bombing, and the words “Bush’ Choice.”  Would progressive organizations be calling for the IRS to investigate?   It is not hard to imagine their reaction if “right” organizations issued that call and if the IRS, responding to the appeal, moved to investigate and revoke the nonprofit’s exemption. 

     The limits on political activity by tax-exempts, like other restrictions of the kind, came into being when the sensibilities of elected officials were offended by speech they found distasteful or politically inconvenient.  Complex law has since evolved, administered erratically and with neither transparency nor consistency.  Organizations formed around passionately held positions on war and peace, life and death, and the requirements of a just and humane society adjust in different ways to this law and its application.  Some choose to give up the effort completely, speaking not at all when speech seems to them morally imperative.  Others speak in more or less willful defiance of government “guidance.”  

     For others who wish to sort out what is permissible or what is not, they have this cold comfort, offered by Professor Hill, an expert: “This is a very difficult area that calls for balanced judgment of all relevant facts and circumstances. But since the facts and circumstances of each case are different, it is impossible to say one type of activity is always acceptable or always prohibited.”

      Better to do away with the prohibition altogether, as an illegitimate condition on tax-exempt efforts.  Rather than bloody each other up with complaints, indifferent to the ethics of compliance but hungry for political advantage, progressive and conservative churches and other nonprofits might press jointly for reform—reform in favor of speech, for a change.

Bob Bauer