- The Washington Times - Tuesday, June 27, 2000

The House of Representatives is scheduled to vote soon possibly today on the "Full and Fair Political Activity Disclosure Act of 2000."
The bill, more full than fair, is a stark reminder of why the First Amendment begins with what columnist George Will calls the five most beautiful words in the English language: "Congress shall make no law…"
When Congress starts writing laws governing, regulating and otherwise controlling the political speech and activities of the American people, such products are always, like this bill, monstrosities.
This is a classic example of legislation by headline.
It started out in response to the media frenzy over "Section 527" committees. Some reporters discovered last year a provision of the tax code they'd not heard of previously. Ostensibly objective journalists describe these perfectly legal entities as "secret" and "shadowy." Apparently, if reporters aren't aware of something that lots of other people know about, it's "shadowy."
Several years ago, the IRS expanded the definition of "exempt purpose expenditures" for Section 527 political committees to include not just traditional campaign activities of candidates and political parties, but also voter education on issues, voter registration, distribution of legislative voting records and voter guides, etc.
So (heaven forbid) political committees could thus be formed, according to the IRS, which did not specifically involve candidates or political parties but which engaged only in issue speech.
Congress got into the picture because of a journalistic drumbeat to make people stop these issue activities.
Those who started this unconstitutional ball rolling say all they want is "disclosure." Baloney.
The "soft money" contributed to or spent by the political parties is all "disclosed." Disclosure has merely given "reformers" the ammunition to call for outlawing such contributions. Disclosure is always the first step in government regulation, which is then followed by calls for prohibition.
The "Full and Fair Political Activity Disclosure Act of 2000" began as a "disclosure" bill only for Section 527 committees. But it soon became obvious that if Congress creates reporting and disclosure requirements only for Section 527 issue groups, the same activities by other groups would be treated differently under the law.
So, the drafters of the "Full and Fair Political Activity Disclosure Act of 2000" just kept going and going and going. Right over the constitutional cliff.
The disclosure requirements proposed under the bill are seriously frightening. Not only Section 527 committees, but also any group organized under Sections 501(c)4, 5, or 6 of the tax code would file quarterly reports to the IRS of their "disclosable activities," defined as one of several possibilities, including "a 527-type activity."
What is that? The issue activities permitted for Section 527 committees as exempt purpose expenditures are not defined in the tax code. Anywhere.
The bill would require section 527 committees to file with the IRS statements of organization stating the "name, address, relationship, and type of any person which is directly or indirectly related to or affiliated with such 527 organization."
Type? What is that?
The "campaign-finance reformers" who started all this are demonstrably hypocritical to argue that the bill as it is currently written is unconstitutional. In reality, they are politically uncomfortable with the bill's reporting requirements for labor unions.
But we should all be worried about some Republicans, especially some high-ranking majority staff members, who actually think this notion of disclosing political activities of citizens to the IRS is a good idea.
Lindy Paul, chief of staff of the Joint Committee on Taxation, testified at the "hearing" on the bill last week that there is "evidence" to demonstrate that "they" (referring, presumably to tax-exempt groups) seem to have a pattern of political activity based on the tax returns of the groups.
She has apparently studied those tax returns (political expenditures must be specifically reported) and observes that "they" start outspending smaller amounts during a two-year cycle which grows to a crescendo during the quarter in which elections occur. (Never mind that legislation normally doesn't get to its crucial final stages until close to adjournment usually within the same quarter as the elections).
Ms. Paul's testimony suggests she believes there is something wrong with what she describes as a "pattern" of political expenditures by tax-exempt groups.
It is disturbing that existing reporting requirements of "political expenditures" by tax-exempt groups apparently already provide the IRS and congressional staffers an opportunity to study the tax returns of citizen groups and discern "patterns" of "political activity." That is worrisome, but is to be expected when the government requires reporting of "political expenditures."
On this bill and on this entire subject, Congress should just say no. This bill is the "slippery slope." It demonstrates what happens when Congress tries to write restrictions on First Amendment rights of free speech, association and the right to petition the government. There is no good place to stop, so don't start.
"Congress shall make no law…"
James Madison must have had the "Full and Fair Political Activity Disclosure Act of 2000" in mind when he wrote that lovely sentence.

Cleta Mitchell is a partner in the Washington law firm of Sullivan & Mitchell, which specializes in campaign-finance and election law.

LOAD COMMENTS ()

 

Click to Read More

Click to Hide