How the IRS Could Chill Political Speech by Redefining the Word ‘Candidate’
f adopted, such a rules change would be open to broad legal interpretation, said Hans Bader, senior attorney for the Competitive Enterprise Institute, a free market think tank.
“Their new definition of candidate-related activity is counter-intuitive and Orwellian,” Bader told TheBlaze. “This is not just for executive and judicial nominees. This would technically include every appointee to a military commission. There are an awful lot of appointed positions in government, thousands and thousands.”
The proposed rule doesn’t specify presidential appointees subject to Senate confirmation. Thus it could include everything from the White House chief of staff to a federal official working at a regional Agriculture Department extension office as shielded from criticism or praised by a 501(c)(4) group.
“This is a First Amendment violation,” Bader said.
The IRS has also said it could expand similar rules to to 501(c)(3) groups, such as CEI and other think tanks and nonprofit groups that are forbidden under their tax exempt status from endorsing candidates, but have traditionally weighed in on Supreme Court nominations, cabinet secretary nominations and other executive and judicial nominees that would be classified as “candidates” under the new rule.
“Thus, think tanks, which have have historically been allowed to criticize executive and judicial nominees for their misconduct or bad policies, could be banned from doing so, simply by the IRS radically redefining the candidate-related partisan political activity they are already forbidden to engage in (electioneering) to include non-partisan criticism that has nothing to do with election campaigns or electioneering,” Bader wrote in a post on the OpenMarket.org blog.