The IRS can still silence political dissent: Column From today's Tea Party to the pacifists, socialists & anti-tobacco groups of America before World War II, the tax man has a long history of trying to shut people up.

Allison R. Hayward | USA TODAY

Two years ago, Lois Lerner of the IRS revealed that it unfairly targeted and delayed Tea Party applications for tax exemption. While the IRS has apologized and promised reform, the agency has not fixed the vague rules that allowed this scandal to happen. As we enter the 2016 election cycle, political activists remain in danger of selective IRS audits, penalties and approvals.

As troubling as this is, we have seen this before. The tax regulation of non-profit advocacy groups has not had a happy history. One pattern repeats: Congress passes a tax law, often to score short-term political points. The IRS then interprets the law aggressively, often against groups with controversial views. Federal courts may soften that blow case by case. Eventually, Congress passes another law and this cycle starts again.

It started as early as the income tax itself. Congress exempted "educational" groups from taxes in 1909 and allowed donors to deduct contributions to those groups in 1917. This was good for activists — the states had held that advocacy groups such as the Anti-Saloon League (the big social movement of the era), trade protection groups and socialist groups were all "educational."

Step in the Tax Man. The IRS announced in 1919 that if a group disseminated "controversial or partisan propaganda," it could not be exempt and donations were non-deductible. The bureau thus found that donations to a German pacifistic Hutterite commune, the Anti-Saloon League, the Anti-Cigarette League, socialists, birth control clinics and the World League Against Alcoholism all ineligible for deductions. According to the bureau, these groups "spread propaganda" and in its view not possibly "educational."

One might or might not be surprised to learn that one's great-grandparents understood the evils of tobacco and alcohol. One should certainly be alarmed to consider that the federal government at that time considered such advocacy not educational and such groups "propagandists." In the case of the World League, it litigated and beat the bureau in court, winning back its status as a educational organization. But the process took six years.

In 1934, Congress revisited this issue and enacted a law that would bar deductions to groups that engaged in "substantial" propaganda, shifting the issue from whether a group was "controversial" to whether it was too active in lobbying and "propaganda." In so doing, it gave the IRS the ability to decide what "substantial" meant, and the latitude to deny deductions to birth control leagues and the League of Women Voters. The National Rifle Association, which had been considered "educational" in a 1926 ruling, lost that status in 1944. The bureau's role as arbiter of permissible activity only strengthened in 1950 when Congress denied tax exemptions to all organizations deemed subversive, i.e. those that promoted communism or served as fronts for pro-communist activity.

When talking tax law, none of this is ancient history. This is the foundation on which the Internal Revenue Code of 1954 was built, which is nearly all the non-profit tax law we follow today. It contains the Johnson Amendment, named after then-Sen. Lyndon Johnson. His provision banned tax-deductible charitable groups exempt under Section 501(c)(3) from intervening in partisan politics. Johnson had drawn a primary challenger during that year's election, Dudley Dougherty, who was supported by a tax-exempt anti-communist Committee for Constitutional Government, the "dark money" of the day. (The committee's chairman was Frank Gannett, founder of the company that owns USA TODAY.) Many believe that this experience prompted Johnson to push for passage of his amendment. Though it was unclear then, we now interpret this clause to bar 501(c)(3) groups from any partisan political activity, yet continue to use a "substantially" test for lobbying.

We need to learn several lessons from this history. First, the IRS, while effective at collecting taxes, is a poor agency to task with regulating advocacy organizations, especially those, such as the advocacy groups covered under 501(c)(4), that cannot offer donors a tax deduction. At most, only trivial amounts of revenue are at stake from the activity. Whether a certain message, or viewpoint, or advertisement, or tone is proper should not be a concern of the revenuer.

Second, Congress must resist the temptation to even political scores through tax legislation. Not only is it poor governance, it rarely works.

Finally, the courts should remain vigilant in protecting groups from IRS overreach and congressional mischief. Courts should feel free to identify and excise laws, even tax laws, that abridge political freedom.

Allison R. Hayward, an election law attorney in California, is the author of "Eternal Inconsistency," a new study on the history of IRS restrictions on advocacy published by the Center for Competitive Politics.

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