Who’s Afraid of Political Speech?

With the dust barely settled following Harry Reid’s bombshell late last week—killing Senate filibusters of appellate court nominees, the obvious purpose of which was to enable the DC Circuit’s eventual rubber-stamping of Obama’s rule by executive order—the Wall Street Journal is now reporting that the Obama administration today “proposed a crackdown on the widespread use of tax-exempt organizations for political campaigning, seeking to reduce the influential role that the secretive groups have played in recent elections.” The timing is exquisite.

It’s hardly news that the administration (and the left generally) is obsessed with limiting political speech—and with the Supreme Court’s 2010 Citizens United decision in particular. Recall the president’s appalling breach of decorum when in his State of the Union Address two weeks later he ridiculed the captive justices sitting before him, to the cheers of the Democrats standing in applause over them. The obsession has continued, manifesting itself most notoriously in the IRS stonewalling of Tea Party applications for 501(c)4 tax-exempt status. Now, we’re told, the new “guidance” issued today “by the Treasury Department and the Internal Revenue Service would curtail a broad array of these tax-exempt entities’ activities, including campaign advertising, voter registration, get-out-the-vote efforts, and distribution of voter guides and campaign materials”—all designed, one Treasury official said, “to simplify the task of policing the groups for the IRS, by drawing brighter lines.”

Thus, under the current standard, the Journal reports,

a tax-exempt entity could run TV ads in the run-up to an election, congratulating a candidate for introducing a bill, and urging the legislature to enact it into law and viewers to support candidates who back that issue, officials said. Under the new standards, the group wouldn’t be able to count that as exempt activity if it is run within the 60-day or 30-day window.

Groups also are able to do voter registration drives and get out the vote efforts now, as long as it isn’t done in support of a particular candidate. But under the new standard, groups couldn’t do voter registration drives as part of their exempt activity, even voter drives that aren’t overtly partisan or political.

I won’t go into the arcane contribution limits or disclosure requirements that are contemplated by this proposal. But I will note that none of this would be necessary if only we could give directly to candidates and their parties far more than our crabbed current law allows. But that would mean that incumbents would face stiffer competition than they now do under current restrictions. And that’s the dirty little secret of our campaign finance law. It parades as corruption prevention, but at bottom it’s incumbent protection.