In 1819, Chief Justice John Marshall, authoring the groundbreaking decision in the case of McCulloch v. Maryland, wrote that “the power to tax” is the “power to destroy.” There is an important corollary to that notion: here at the National Religious Broadcasters (NRB) – because we are committed to the free speech, religious freedom, and free press interests of Christian communicators, broadcasters, and media organizations – we also believe that the official use of tax regulations and taxing agencies to impede or intimidate non-profit religious groups, or any group for that matter, because of their beliefs is destructive to fundamental freedom. The House of Representatives is wrangling over asking for contempt charges to be brought against Lois Lerner, the former head of the IRS’s “exempt” (non-profit) organizations section, for her reluctance to cooperate in the House investigation. That is the latest twist in the IRS scandal that has exposed the federal tax agency’s targeting of conservative and Christian non-profit groups. Yet, even though the issue has largely broken along partisan lines on Capitol Hill, Bob Woodward, who investigated and exposed Watergate as a reporter for the Washington Post, noted on Fox News Sunday that his suspicions have been raised over Lerner and the IRS; “there’s obviously something here,” he said. So, perhaps it is time to review again some of the basics of this issue.
First, the law: the Supreme Court stated in 1970 that the First Amendment is designed to preserve the “autonomy and freedom of religious bodies,” and it reaffirmed that principle most recently in 2012. The fact that faith-based groups were among those that were harassed shows a troubling disregard within the IRS for religious liberty. Then there is the matter of free speech. In language surprisingly predictive of the current IRS scandal, the High Court wrote a full three decades ago that First Amendment rights would be jeopardized if federal non-profit tax rules were “intended to suppress any ideas” or even if they “ha[ve] that effect” regardless of government intent.
Second, the evidence: Hearings in the House of Representatives have revealed that the IRS has targeted non-profit groups because of their beliefs. An IRS analysis conducted in July 2012 under Lois Lerner’s supervision found that of the 298 non-profit organizations that had their applications for non-profit status unreasonably delayed by the IRS, 75% (about 223) were conservative groups, while less than 10 in number were liberal. According to the report by the Treasury Department Inspector General for Tax Administration, the IRS admitted having demanded “unnecessary” and inappropriately intrusive information from 58% of those conservative groups, asking for such things as the political affiliation and employment history of their leaders, and a list of all of the issues that they believed in. Faith-based NRB-member ministries were obstructed, including The Billy Graham Evangelistic Association, Samaritan’s Purse, and Dr. James Dobson’s Family Talk Action group whose non-profit application was impeded because, according to an IRS official, it was deemed to be a “partisan right wing group” that had “criticized President Obama.”
And the list goes on. The National Organization for Marriage told the House Ways and Means Committee that an IRS insider provided its confidential tax records to a rival advocacy group. A pro-life organization was ordered by an IRS official not to criticize other groups’ beliefs, and three other pro-life groups have been harassed by the IRS. There can be no serious debate that these constitutional violations must stop. The real questions are “When?” and “How?” The “when” issue is highly uncertain, but the “how” question is much easier to answer. There needs to be continuous, aggressive oversight by the Congress. The courts need to mete out justice in those lawsuits that have been brought on behalf of IRS-attacked groups by NRB member American Center for Law and Justice (ACLJ) and other lawyers. But equally important is an informed American public, a factor that presupposes that the press – including the Christian media – will do its job and be vigilant on their behalf. Watergate was a scandal. But in the end, “taxgate” may prove to be far more injurious to the basic rights of average Americans.
By Craig Parshall
Senior Vice President & General Counsel, National Religious Broadcasters
Director, John Milton Project for Free Speech
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Published: April 24, 2014