By Mark J. Fitzgibbons
Donors to nonprofit organizations of all stripes are at risk of harassment, unless a bill to be introduced this week by Rep. Peter Roskam is by passed by both houses of Congress and signed into law. If you have the means and are generous enough to contribute $5,000 or more to a homeless shelter or food bank, a charity to help abused spouses and children, an animal rescue, an organization protecting life, a group advocating for constitutional rights, or any other charity or social welfare nonprofit organization, your contribution, name, and address currently must be reported by the recipient organization to the IRS — even if the donation is not tax-deductible.
By law, this contribution information is supposed to be treated and guarded by the IRS as confidential. Unauthorized access to and use of that information by government officials is prohibited under post-Watergate reforms to the tax code. Its unintentional disclosure is subject to civil remedies, albeit ones without enough teeth in an age of careless bureaucrats. Criminal penalties are supposed to apply to officials who willfully disclose or review your private information unless expressly authorized under a rigid privacy regime in the tax code.
Information about Americans’ private generosity, however, is not safe with the IRS. And, there are those people who attribute sinister motives to generosity, calling beneficence for even deeply held convictions of conscience “dark money.”
Worse, even, two highly partisan state attorneys general with proven track records of using government power to try to silence the speech of those who don’t share their leftwing views — Kamala Harris of California and Eric Schneiderman of New York — are using dragnet licensing methods to evade the tax code by obtaining directly from charities what was reported to the IRS under laws and expectations of confidentially. Harris and Schneiderman are in the news this year for targeting climate speech for investigation and possible prosecution. They not only disrespect First Amendment rights of those with opposing views, they are lawless and arrogant enough to believe the federal tax confidentiality laws don’t apply to them.
This week the U.S. House of Representatives will consider a bill introduced by Congressman Peter Roskam that would end the collection of most private contribution information by the IRS. HR 5053 does more than end the IRS’s collection of this private information currently reported on Schedule B to Form 990, the tax return filed by charities and social welfare organizations; it corrects a mistake by a prior Congress that created a federal exception to the right of private association expressed in the landmark civil rights case from 1958, NAACP v. Alabama.
In the 1950s, Ku Klux Klan-backed Democrat Alabama Attorney General John Patterson sought to obtain the list of financial supporters of the NAACP in his state. His objective was to shut down the civil rights movement there through intimidation that would dry up the organization’s funds.
In holding against Patterson, the court said:
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.
Unlike liberals such as Harris and Schneiderman, who wish to use government power to impose their personal intolerance of dissent, others such as my friend and liberal activist legend Roger Craver know history and how the power pendulum swings both ways. Roger is in the American Association of Political Consultants Hall of Fame, and was described by The Wall Street Journal as “an assassin of all things right-wing.”
Writing at his blog The Agitator, Roger says, “[w]hen it comes to protecting the privacy of members and donors, all nonprofits should be fighting mad regardless of ideology. Michael Moore and the Koch brothers. We’re all in this together.”
A who’s who of over 100 top conservative leaders and lawyers recently sent members of Congress a letter about the need to conduct hearings into whether the IRS was derelict by not protecting confidential donor information from the unseemly clutches of Harris and Schneiderman, and to inquire whether these two AGs violated the criminal laws about donor privacy in the tax code. Meanwhile, the IRS has been asked in private correspondence to explain why it did not enforce the unauthorized access laws and protocols, called “UNAX,” against Harris and Schneiderman.
The Roskam bill is an important step in protecting the right of private association. A group of state charity regulators whose ranks include members of the offices of Harris and Schneiderman, however, are protesting the Roskam bill. One of the more vocal charity regulators once claimed now-disgraced former IRS official Lois Lerner as their “partner in the regulation of charities.” Their poor judgment goes beyond keeping bad company. Four times since 1980 these state bureaucrats have been scuttled at the U.S. Supreme Court for their attempts to violate the First Amendment under their loose theories of “consumer protection” and fraud.
Like recalcitrant and habitual offenders often do, Harris and Schneiderman have continued looking for ways to violate laws and constitutional guarantees so they may intimidate and silence speakers. For now we can only wonder whether the IRS’s failure to stop them was a matter of turning its head the other way for Lois Lerner’s “partners.”
The Roskam bill restores certain important protections articulated in NAACP v. Alabama. The key is that government officials not insert themselves into our right to associate privately with causes. Too many of these officials simply cannot be trusted with routinely possessing such private information.