Oh Bob!

I was disappointed by this post from Bob Bauer, which uses a recent Wall Street Journal op-ed I wrote, and a letter to the editor by Paul Ryan of the Campaign Legal Center in response, to disparage the general tone of the campaign finance debate, while itself adopting a “pox on both your houses” tone. In fact, I think all of us at CCP agree with Bob that campaign finance debate is too often stuck in a rut, that much of the debate relies far too heavily on inflammatory rhetoric, and that the country deserves better. But this seems like a curious exchange from which to argue that point.

My op-ed used the IRS notice of proposed rulemaking regarding political activity by non-profit 501(c)(4) organizations as a springboard for asking why the IRS was in the business of regulating political activity at all. Bob describes it thusly: “Brad Smith of the Center for Competitive Politics took to the pages of The Wall Street Journal to criticize the IRS’s proposed rules on tax-exempt political activity, … Smith … complained about an agency ‘power grab.’” There are two very specific errors in that description, which set the tone for more general criticism that I think also misses the mark.

As to the specifics, first, while I did note at the outset that “It is tempting to pick the proposed rules apart—and there is much to pick, such as restrictions on a nonprofit discussing any aspect of a president’s judicial nominees in a public communication any time between Feb. 2 and a national election day nine months later,” (does anyone thing that is not worth criticizing as a very badly drafted rule?) I specifically proceeded to point out that my purpose was not to criticize the IRS proposed rules, but to ask questions of a more basic nature, writing, “it is more important to ask how we got here. Why is the IRS regulating political activity at all?”

Second, in attempting to answer that question I did not accuse the IRS of a “power grab.” That phrase appears nowhere in the op-ed, but is from the headline. Bob has written enough op-eds himself to know that an author doesn’t write, approve, or typically even see a headline before the article appears in print. I do not think that my article can be properly characterized as accusing the IRS of a “power grab;” headline writers tend to put their own spin on things.

Thus, Bob’s account, which seems intended to be read as something of a paraphrase of my column – though Bob doesn’t directly say that – argues that some (“those like Brad Smith”) believe that “[t]he IRS can’t be confused and unsure of its course, left on its own by Congress. It must be grabbing power, colluding with the Left, helping to smoke out conservative donors and silence the nonprofits they support.” But I don’t make those comments – at least not those that would suggest some intent on the part of the IRS’s career appointees. I do not portray the IRS as a “villain” (Bob’s term characterizing my language), but more as an unfairly used, beleaguered agency.

That brings us to the broader issue. In the op-ed I do note – and this is a matter of record, which Bob doesn’t dispute in the blog post – that the IRS has been under tremendous pressure from elected Democratic officeholders, including several Senators and the White House, and from elements of the so-called reform Community, such as Ryan’s Campaign Legal Center, to take action against non-profits which engage in limited political activity. In many cases, this pressure has come with specific exhortations to focus on conservative groups, both generally and specifically. And of course, we still have the IRS scandal from 2013, in which Treasury’s Inspector General concluded that the IRS implemented criteria that directly targeted conservative speakers for tougher tax treatment. Further, we know that an important section head at the IRS has pled the Fifth Amendment, and that the Administration’s initial claim that the improper targeting of conservative groups was the work of rogue careerists in the Cincinnati office of the IRS was not true.

I go on in The Journal to explain how the IRS was brought into regulating politics very specifically for the purpose of getting disclosure regulations that the Supreme Court had held in Buckley v. Valeo and Massachusetts Citizens for Life could not be imposed by the FEC directly on groups that did not have a primary purpose of political activity. The “reform” solution was to make the existence of sound tax policy and non-punitive taxation the basis for demanding disclosure, relying on dicta in Regan v. Taxation with Representation, a case about taxation for 501(c)(3) organizations whose donors get actual tax breaks. (Unfortunately, space constraints truncated this portion of the article and discussion of the 2000 disclosure act that, for the first time, made the IRS distinction between 501(c)(4) and 527 status important). And I explain why the arguments that the IRS should be engaged in political regulation have been misleading, and certainly do not relate to the agency’s primary revenue collection mission. Ryan’s response was also sharply focused on the substance of the particular issue, and ultimately agreed with the point that the issue was not about tax policy and revenue collection but of “disclosure of money spent by tax-exempt groups on candidate-related election activity.”

In other words, it certainly seems an odd column for Bob to use to make the points he makes. My Journal column was not generally about campaign finance regulation or accusations about the general goals or motives of the pro-regulatory lobby, but about countering very specific claims made by that lobby for IRS intervention, explaining why the IRS scandal may have occurred in response to political pressure, and why the IRS should not be involved in campaign finance regulation, I argue on the basis of rather significant evidence that this was not a tax issue for the IRS at all, and that that fact should shape our response. The money quote from my op-ed, for my money, was this:

To anyone concerned about public confidence in nonpartisan tax collection and preventing future IRS scandals, the solution is not more tax rules. It is for the IRS to get out of the business of regulating politics.

I am sensitive about this issue of tone, perhaps, because I agree with a key point Bob seeks to make in this blog post. He is critical that, “In this debate, it seems no one can be just mistaken. Everyone must be bad.” I have tried to avoid that approach, constantly and almost certainly to the point of annoyance lecturing many of my closest allies, associates, and subordinates that we must assume the good faith of our opponents. With a caveat – we must assume good faith, until and unless there is sufficient reason to think otherwise. And sometimes, there is. For to deny that “everyone must be bad” is not the same as agreeing that “everyone speaks in good faith all the time.” Sometimes people do simply want to silence their political opponents, and I do believe that sometimes we can fairly reach that judgment. I have not been shy about calling out Republicans as well as Democrats for this.

Like Bob, I do hope that the campaign finance debate can move forward, both substantively and rhetorically, in 2014. A good way to start would be to get the IRS out of the campaign-finance business, which has brought the IRS into scandal, complicated the law from an enforcement and compliance standpoint, and made an already complex area of the law almost entirely inexplicable to the casual member of the general public.

The Center for Competitive Politics is now the Institute for Free Speech.