The IRS's proposed bright line test gets it wrong

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With respect to the IRS's proposed bright-line test for "candidate-related political activity," the IRS appears to be tone-deaf to the sound of Supreme Court’s instructions as supreme arbiter of constitutional protections. In Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449 (2007), the Supreme Court specifically rejected the argument that a bright-line test could provide the requisite “compelling government interest” sufficient to satisfy the applicable “strict scrutiny” standard for First Amendment rights of section 501(c)(4) organizations. In doing so, the Supreme Court specifically ruled that a communication’s timing in relation to an election, just like the 60/30-day framework now proposed by the IRS, is an invalid consideration for regulating speech by section 501(c)(4) organizations.

In Federal Election Commission v. Wisconsin Right to Life, Inc., the Supreme Court addressed the issue of whether a section 501(c)(4) organization overstepped its legal limits by using corporate funds for an ad that encouraged listeners to contact their senators and oppose a filibuster. The ads aired within 30 days of a primary election, in violation of the Bipartisan Campaign Reform Act of 2002. The Court framed the issue as whether such ad was the “functional equivalent” of express advocacy, and therefore could be regulated per the Court’s ruling in McConnell v. Federal Election Commission.

Rejecting such conclusion, the Court instructed, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” Any test regarding politically oriented speech thus should “reflect[] our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” On this basis, the Court applied a “strict scrutiny” constitutional test, requiring the government to show that regulation of speech in this case furthered a “compelling government interest” and was “narrowly tailored to achieve that interest.” In doing so, the Court specifically rejected any “intent-based,” subjective test based on factors such as timing. As the Court warned, “[f]ar from serving the values the First Amendment is meant to protect, an intent-based test would chill core political speech by opening the door to a trial on every ad . . . , on the theory that the speaker actually intended to affect an election.”

Instead, the Court imposed an objective test that affirmed broad freedom of expression: “[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The Court thus sought to provide a “safe harbor” between constitutionally protected political speech (i.e., issue advocacy) and speech legitimately subject to regulation (i.e., express campaign advocacy or the functional equivalent thereof). The Court concluded by holding that there was no “compelling government interest” sufficient to pass constitutional muster. In doing so, the Court specifically rejected the applicability of any bright-line test as being constitutionally appropriate under the requisite strict scrutiny test. “[T]he desire for a bright-line rule . . . hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom.”  

If the IRS is truly interested in a bright-line test and clarity as it claims, then here is one simple solution: comply with the U.S. Supreme Court’s directive to let the proverbial tie go to the speaker, not the censor. More specifically, keep the IRS out of all questions of politically-oriented speech short of (a) express advocacy for or against a candidate and (b) lobbying distinctions between section 501(c)(3) and section 501(c)(4) organizations. By taking such steps forward, our country’s deeply valued First Amendment free speech rights can be better preserved and protected.