This week, Republicans in the House of Representatives are striking two blows for freedom of speech: First, by pushing forward on the possible impeachment of Internal Revenue Service Commissioner John Koskinen in the first of two Judiciary Committee hearings examining his misconduct in office; second, by pushing forward to passage of Rep. Peter Roskam’s H.R. 5053, the Preventing IRS Abuse and Protecting Free Speech Act.
Freedom of speech - translated, for our purposes, as the right to criticize the government, and to lobby the government for changes in policy - is so central to the American experience that its protection was enshrined in the very first amendment to the U.S. Constitution. It is the right that guarantees all our other rights. Without it, states and individual citizens (including groups of citizens who have chosen to band together to lobby the government) would be subject to the tyranny of a central government, with no recourse. And to the world abroad, it is the one right that makes us unique, and the envy of democracy activists everywhere.
The Internal Revenue Service - long the most feared federal agency of the federal Leviathan - abused its power and worked deliberately to silence critics of the Obama Administration when it targeted groups with the words “tea party” and “patriots” in the names of their organizations. That effort lasted for years before it was revealed.
It’s important for the public to understand that, despite IRS insistence that no long-term damage was done to the targeted groups, the targeting scandal did not merely delay certain groups’ applications for non-profit status; by denying those applicants their “determination letters” in a timely fashion, the IRS effectively shut down large parts of the fundraising operations for those applicants, for the simple reason that many larger donors and potential donors see the IRS determination letter as a sort of Good Housekeeping “Seal of Approval.” Without such a letter from the IRS, many high-dollar donors simply take a pass on the solicitation for funds, and choose instead to direct their contributions toward more established organizations. And once the perception that an organization is not “worthy” of this approval takes root in prospective donors’ minds, it is difficult to overcome, even after the revelation of deliberate targeting by the IRS.
And, worse, when the targeting was revealed in May of 2013, and donors and potential donors learned that the IRS had deliberately targeted such organizations, they had a second reason not to give - because who wants to take a chance that a contribution to a disfavored group will result in a personal audit targeting the donor himself?
In fact, it turned out that contributing to a tea party organization vastly increased the chances of suffering a personal audit. Data collected and analyzed by the House Ways and Means Committee, released in May of 2014, showed that about one in ten tea party donors were subjected to audit - about ten times the average. Who would want to increase his chances of being audited by 1,000 percent?
The result? The suppression of political speech opposed by the Obama Administration. For without adequate funding, it is challenging, if not impossible, to assemble as a group and to pay for facilities for events, insurance required at said facilities, and communication tools to communicate and organize effectively the message.
Consequently, not being known to the IRS as a donor to a disfavored group would be one way of protecting the free speech rights of those donors. If IRS agents don’t know you’ve contributed to such a group, they can’t target you for a personal audit.
Such is the thinking behind the Roskam bill, about which, all I have to say is, it’s about damn time. The Roskam bill simply repeals the current IRS mandate that tax-exempt organizations file what’s known as a “Schedule B” form, which includes information on all donors who give more than $5,000 in a year.
H.R. 5053 was voted out of the House Ways and Means Committee on April 28 by a vote of 23-15, and is now gathering cosponsors before full House consideration. What’s amazing about the committee vote is that all 15 of the committee’s Democrats voted against the bill. Why?
Meanwhile, on Tuesday morning, the House Judiciary Committee held a hearing on IRS Commissioner Koskinen’s public sins. Reps. Jason Chaffetz and Ron DeSantis, testifying before the committee, argued persuasively that Koskinen’s behavior in responding to the fallout from the targeting scandal - while perhaps not rising to the level of criminal behavior - nevertheless warrant his impeachment for repeated violations of the public trust.
As Alexander Hamilton wrote of the remedy of impeachment in Federalist 65, “the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
Hamilton, thus, argued that impeachment is a political remedy, rather than a legal one. As such, the threshold of evidence needed for impeachment is not the same as the threshold needed for a conviction in a criminal trial. Members of the Judiciary Committee need to remind themselves of this salient fact as they ponder Mr. Koskinen’s fate.
And Members of Congress in both parties can send a signal that they take their oaths of office seriously by supporting the impeachment of Mr. Koskinen and the passage of the Roskam bill. Free speech demands both.
Please read our comment policy before commenting.