The IRS has proposed new regulations that would carve out an exception to federal rules on tax-exempt organizations, regulations that would essentially ban conservative tax-exempt educational organizations from informing voters about federal candidates' voting records before elections.
Federal law allows organizations created for “educational” purposes to apply for tax-exempt status, including organizations that take a position on public issues, so long as the “civic leagues or organizations [were] not organized for profit but operated exclusively for the promotion of social welfare” and — according to current IRS rules — their mission was not “primarily” to affect elections. The proposed regulations, which would take effect after a public commentary period, specifically target “distribution of a voter guide and accompanying material that refers to a candidate or a political party.” Even a link on an objective website to another website that contains an opinion would be policed by the nearly all-inclusive embrace of the proposed regulations: “When a charitable organization chooses to establish a link to another Web site, the organization is responsible for the consequences of establishing and maintaining that link, even if it does not have control over the content of the linked site.”
The proposed new regulations have no basis in any law enacted by Congress, or provision of the U.S. Constitution, but are instead the result of the Obama administration response to intensive lobbying by the political Left against voter information organizations in the wake of the Supreme Court's 2009 Citizens United decision. The proposed regulations themselves, published in the November 29 Federal Register, acknowledge they were the result of political lobbying: “The Treasury Department and the IRS have received requests for guidance on the meaning of ‘primarily’ as used in the current regulations under section 501(c)(4).”
Under the proposed new rules, organizations under 501(c)4 of the IRS code would no longer qualify for tax-exempt status if they are primarily engaged in education on the voting records of public officials, even if the organizations are not engaged in electoral activity. According to the IRS:
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