THE IRS AND THE FIRST AMENDMENT; Congressional Record Vol. 164, No. 120
(Senate - July 17, 2018)

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[Pages S4973-S4974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE IRS AND THE FIRST AMENDMENT

  Mr. McCONNELL. Madam President, last night the Internal Revenue 
Service made an important announcement. It is particularly welcome news 
to those of us who are intently focused on defending the First 
Amendment, for those of us who, over the years, have raised concerns 
during the last administration about activist regulators punishing free 
speech and free association.
  It is a straightforward, commonsense policy decision. The Internal 
Revenue Service is cutting back on the amount of nonpublic information 
it collects and stockpiles about Americans who donate to nonprofit 
causes. The IRS will no longer pointlessly demand private contributor 
lists from whole categories of tax-exempt organizations. I say 
``pointlessly'' because the identity of nonprofit donors serves no 
compelling purpose under sections 501(c)4, and 501(c)6 of our Tax Code.
  Contributions to these organizations are not tax deductible--not tax 
deductible--so the IRS does not need to see this data for accounting 
purposes. These organizations are not required to release that 
information under the public inspection and availability requirements.
  Let me repeat. The identity of the donors to these organizations is 
not necessary for accounting and is not required for public inspection 
by the Internal Revenue Code.
  It raises the question that if the IRS isn't permitted to do anything 
with this set of Americans' private information, why collect it in the 
first place?
  Unfortunately, we know exactly what happens when the government 
stockpiles private data about the donations through which Americans 
participate in the public discourse. We know exactly why many on the 
left are keen for bureaucrats to have this confidential information. 
Where it leads is Americans being bullied for exercising their First 
Amendment rights. This bullying is established by bureaucrats and, in 
some cases, by elected officials.
  Sometimes the government itself does the bullying. Case in point: the 
Obama administration's IRS scandal. The agency slow-walked the 
applications of groups that appeared conservative, including some of my 
own constituents. Donors and groups faced unusually aggressive 
questioning, unreasonable deadlines followed by unreasonable delays. 
These were Federal authorities using the weaponry of government to 
punish Americans for supporting speech they didn't like.
  Other times, government simply enables the harassment. It fails to 
protect this private information from leaking to the army of angry 
leftwing activists who stand eager to harass and bully anyone who is 
contributing to national conversations with political views with which 
they disagree.
  Back in 2014, the IRS had to settle a lawsuit on this very issue. An 
IRS worker broke the law and leaked an unredacted copy of a group's 
confidential tax forms which wound up in the hands of a liberal 
organization on the opposite side of the issue. Needless to say, 
private information about Americans' political speech was quickly 
weaponized for political purposes. In one case, the CEO of a technology 
organization was hounded from his job by liberal activists for daring 
to see this subject differently than they did.
  Some State governments began demanding their own copies of the 
information the IRS was gathering. There were similarly troubling 
results. In 2012, California, which had promised nonprofits that donor 
lists would only be seen by the State's Registry of Charitable Trusts, 
accidentally--accidentally--published the donor lists of hundreds of 
nonprofits from across the political spectrum. More States, like New 
York, have sought to copy California, allowing more activist regulators 
to access this information.
  So the pattern is unmistakable. This particular political movement 
wants to erase our age-old tradition that citizens should be able to 
keep their private views and the causes they privately support private.

[[Page S4974]]

  Back in the 1950s, it was the NAACP who took on the State of Alabama 
over precisely this issue. The State government tried to get their 
hands on the NAACP's donor list. The issue went all the way to the U.S. 
Supreme Court, where the NAACP won a big victory for the First 
Amendment.
  Here is what Justice Harlan wrote in that opinion: ``Inviolability of 
privacy and group association may in many circumstances be 
indispensable to preservation of freedom of association, particularly 
where a group espouses dissident beliefs.''
  He said that forcing private organizations to disclose their donors 
was not so different from forcing people with certain views to wear 
armbands or other clothing, advertising their beliefs to the world.
  In both cases, the government's action would be inviting harassment 
and intimidation upon Americans--those whose beliefs were either 
unusual or unpopular or, in today's culture of intimidation, those 
whose beliefs the left disagrees with. The result is, more speakers 
stay silent, fewer Americans choose to exercise their right of free 
association.
  It is bad enough to wield government power to chill political speech 
and invite harassment of citizens based on what an angry mob might 
assume their opinions are, based on their private financial records. It 
is even more egregious to pursue that nakedly political goal while 
calling it--believe it or not--good government.
  In this country, good government means protecting citizens' First 
Amendment rights to participate in the competition of ideas, not trying 
to shut down that competition. We persuade. We don't intimidate.
  So I welcome this announcement and applaud the leadership of 
Secretary Mnuchin and Acting IRS Commissioner David Kautter. I am glad 
this step will make the right of Americans to freely advocate for their 
strongly held beliefs less vulnerable to the malice of some in 
government and to the proven failures of bureaucracies. I urge 
continued vigilance for all of us who cherish the First Amendment.

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