Should homeschool debate clubs register at Section 527 organizations?

Bradley Smith argues that federal government restrictions on tea party and other Constitution and conservative groups were not related to their tax-exempt status, but rather to their ability to gather, raise funds, and speak out on political topics (“The IRS Attack on Political Speech,” WSJ, August 5, 2013, online, and in print, August 6, 2013, page A13).

Tea Party and patriot groups were waiting for approve for Section 501(c)(4) status (not 501(c)(3) tax-exempt status). Smith notes:

IRS apologists argue that Section 501(c)(4) requires organizations to operate “exclusively for the promotion of social welfare,” but Section 501(c)(4) has never been interpreted to prohibit all political activity.

Groups advocating more government “social welfare” qualify and quickly receive the 501(c)(4) status. Apparently though, anti-government groups are suspected of being anti-social welfare. Without government and the various well-intended wage laws, employment regulations, and government social justice programs, fans of The State envision social welfare shoved over a cliff. (Sociologist Franz Oppenheimer offers a far more skeptical view of The State.)

As dozens or hundreds of these groups waited for government approval to speak out against elected politicians and federal government policies, the bland 2012 national election campaign came and went.

I wondered at the time where the strong, sometimes strident (and sometimes a bit crazy) Tea Party and pro-Constitution voices went, after they were so much in the news ahead of the 2010 elections.

Turns out that with current federal election law, everyday people can’t organize and raise funds for political speech without a license from the federal government. If that seems weird and repressive, well, it is. The stated goal is to have transparency, so that big corporations, unions, and rich folks can’t stuff funds into political advocacy campaigns without their support being reported to the government and the public. But government-approved 501(c)4 groups can and do promote big-government policies and politicians every election cycle.

Here is an example from June, 2012, ahead of the last national elections: Wyoming Liberty and other groups wanted to spend money on political advertising but couldn’t find out from the Federal Election Commission if they were allowed to under current federal election law. The trib.com article begins:

Attorneys for three Wyoming residents who formed a grassroots organization called “Free Speech” filed a lawsuit in federal court… 

The first two words, “Attorneys for,” suggest a first restriction on free speech. If you can’t afford attorneys to advise you on federal election law, your group better sit out this campaign season. Better to just campaign for and donate to established candidates, rather than rock the establishment boat.

The Federal Election Commission did respond. Three times:

The organization in February sought an advisory opinion from the FEC to be sure its program would be consistent with the law. Ultimately, the FEC provided three contradictory draft advisory opinions, the lawsuit said. If the group does not register as a political action committee and then runs ads, it could be deemed in violation of the rules and subject to civil and criminal penalties.

More from Bradley Smith’s WSJ op-ed on why pro-government groups with their built-in “social welfare” clauses get a quick pass from the IRS:

This explains why left-wing groups such as MoveOn.org, People for the American Way, Naral Pro-Choice America, and the Brady Campaign to Prevent Gun Violence have operated for years under 501(c)(4) status. They spend millions to support liberal candidates and agendas, with nary a protest from Democrats now raging against the tea parties and other conservatives. By delaying approval for conservative groups, the IRS left them in legal limbo, with uncertain liabilities, obligations and ability to act…

For students researching federal election law reform, more layers of campaign regulation will not be the best solution. Campaign law is already complicated and each revision of regulations will likely require more lawyers to interpret and advise.

Smith claims these regulations limit freedom of speech by putting restrictions on efforts to organize and promote some kinds of political speech to wider audiences (for which donations are key).

“The IRS Attack on Political Speech (WSJ, August 5, 2013, online, and in print, August 6, 2013, page A13).

If the Federal Election Commission decides to investigate homeschool debate clubs, will they discover unregistered political advocacy?

Bradley Smith is Chairman of the Center for Competitive Politics, and was chairman of the Federal Election Commission.