July 17, 2018 - Issue: Vol. 164, No. 120 — Daily Edition115th Congress (2017 - 2018) - 2nd Session
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. ____________________