“Shut up!”, He Explained

by Dave Schuler on February 17, 2014

There are reasons for political actors not to use the power of government against their opponents. Other than that it’s wrong, I mean. Pragmatic reasons, the most important of which is that there’s no such thing as a permanent majority and any instrument of power you wield against your opponent can be used against you. That’s why President Obama’s broad interpretation of “necessary and proper” use of his executive power or Senate Majority Leader Reid’s “nuclear option” are imprudent. If waiving the employer mandate is a legitimate exercise of executive power, then why isn’t waiving the individual mandate? Why not just waiving the entire PPACA?

The editors of the Chicago Tribune remind us of why the IRS’s highly selective use of it powers may not work out as intended:

Conservatives are naturally upset by what they perceive as an effort to silence them. Senate Republican Leader Mitch McConnell said the rules “would essentially allow the IRS to bully and intimidate Americans who exercise their right of free speech.”

But the proposal has drawn strong criticism from plenty of liberal groups too. The Sierra Club said it “harms efforts that have nothing to do with politics, from our ability to communicate with our members about clean air and water to our efforts to educate the public about toxic pollution.”

The American Civil Liberties Union said it “could pose a chilling effect on issue advocacy” to the disproportionate detriment of “small, poor nonprofits that cannot afford the legal counsel to guarantee compliance.” Labor unions, which do not fall under the regulations, fear that someday they will be included.

The simplest way for nonprofits to stay out of trouble, of course, would be to simply shut up. So the likely — and unhealthy — consequence will be to reduce the amount of advocacy and educational information available to the public, not only about elections but about all sorts of policy issues.

Taking the fun out of abuse of power is well within the Congress’s ability, even within the House alone’s ability. They don’t need a by-your-leave from the Supreme Court. If we didn’t have such a cowardly, feckless, useless Congress we would have a lot more rule of law.

{ 9 comments… read them below or add one }

PD Shaw February 17, 2014 at 10:02 am

I’ve made this point several times at OTB, but I think there are a number of people who feel that a social welfare organization cannot be a supporter of free enterprise or profit. That does not appear to be the distinction that the IRS is contemplating, as it would put the government into the position of being accused of viewpoint discrimination. Litigation all around.

Most of us, almost all of us, do not have the time and ability to monitor important legislation, which makes us dependent on special interest groups doing that for us.

Dave Schuler February 17, 2014 at 10:23 am

I think the basic problem resides in the gaps between legislation and regulation and regulation and enforcement. The regulation itself may be viewpoint-neutral but if the regulation is enforced selectively against only certain viewpoints the effect is the same as if it were “viewpoint discrimination”. Without leaving all those nasty fingerprints, of course.

That’s where I have extreme difficulties in law as it’s evolved over the last several hundred years. IMO “reasonable interpretation” should be an unassailable defense. That is, I don’t think that interpretation of the law should be the exclusive province of the judicial branch of government or the legislative, judicial, and executive branches or even professionals but that anyone should be able to play.

Andy February 17, 2014 at 12:55 pm

I’d add that there is a definitional problem. Determining what is and isn’t a political activity isn’t straightforward.

Also , Government cannot competently regulate many areas, yet the OTB crowd expects them to do it for political activities, and do it fairly as well.

Personally, I think all the attempts to take money out of politics have the opposite effect – it’s like squeezing Jello with your hand. If I were king I would replace almost all of the restrictions on money in politics with transparency measures so people would know where the money comes from and where it goes.

steve February 17, 2014 at 1:11 pm

I would also eliminate this stuff. No tax exemptions for anyone. Make it transparent. Just assume it is all political since it probably is.

Steve

PD Shaw February 17, 2014 at 4:18 pm

@Andy, there appears to be no interest in expanding disclosure requirements. Social welfare organizations are not required to disclose their donors, which I think a lot of people believe is the real problem in this area. In the 1950s, Alabama was prevented by the SCOTUS from requiring social organizations (namely the NAACP) from revealing its membership list. But I don’t know if that ruling would necessarily apply to donor lists, but disclosure is going to be an issue on the left and right, because its going to be seen as chilling people from contributing to unpopular causes.

PD Shaw February 17, 2014 at 4:59 pm

@steve, I don’t think eliminating the exemption eliminates the problem entirely. Corporations are largely taxed on the extent their income is greater than their business expenses, and one of the business expenses is advertising relating to your business or for generating goodwill. E.g., Peabody Coal advertises the benefits of coal. Eliminating tax exemptions to nonprofits put them at a disadvantage to for-profits who can do a lot of types of advocacy without tax consequences. Sierra Club gets taxed for informing people about the dangers of our country’s dependence on coal.

... February 17, 2014 at 5:11 pm

Tax consumption instead of income, and doesn’t this problem disappear?

PD Shaw February 17, 2014 at 6:24 pm

Is sending a check to a nonprofit consumption?

... February 17, 2014 at 6:34 pm

Only if you get something in return, lol. Mostly I was thinking that any spending by the non-profit gets taxed, but that’s a good point.

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