The Citizens United Excuse

[Ubiquitous]

The behavior of the Obama IRS has been so manifestly scandalous that very
few politicians and commentators, even on the left, are willing to defend
it outright. But some are looking to change the subject. Oh look! A
Citizens United squirrel. House Minority Leader Nancy Pelosi was one of
the first, as the Washington Times reported:

Pelosi. . . also blamed the Supreme Court for opening the door
to broader political activity.

In the Citizens United decision, the court ruled 5-4 that
corporations have First Amendment political rights and ruled
that while they cannot contribute directly to candidates, they
can run ads making their own views known.

Mrs. Pelosi, the top Democrat in the House, said that has become
a problem for the IRS in enforcing the laws.

"There needs to be more clarity in the law regarding the
activities of tax-exempt organizations along with greater
disclosure and transparency. We must overturn Citizens United,
which has exacerbated the challenges posed by some of these
so-called 'social welfare' organizations," she said.

Here's Journolist founder Ezra Klein:

The context for all this is that after Citizens United and
some related decisions, the number of groups registering as
501(c)4s doubled. Because the timing of that doubling coincided
with a rise in political activism on the right rather than the
left, a lot of the politicized groups attempting to register
as 501(c)4s were describing their purpose in tea party terms. A
popular conceit, for instance, was that they existed to educate
on the Constitution--even if the particular pedagogical method
meant participating in Republican Party primaries and pressuring
incumbent politicians.

In looking for that kind of language in 2010, the Cincinnati
employees were attempting to create a usable shortcut. Like
Willie Sutton robbing banks, they were going where the action
was.

Got it. What the IRS did was like bank robbery, Klein observes in its
defense!

A New York Times editorial demanded more, not less, IRS scrutiny:

The I.R.S. should have used a neutral test to scrutinize every
group seeking a tax exemption for "social welfare"
activity--Democrat or Republican, conservative or liberal. Any
group claiming tax-exempt status under Section 501(c)(4) of the
internal revenue code can collect unlimited and undisclosed
contributions, and many took in tens of millions. They are not
supposed to spend the majority of their money on political
activities, but the I.R.S. has rarely stopped the big ones from
polluting the political system with unaccountable cash.

So the Times has adopted the idea that speech can be a kind of moral
pollution. Somewhere Robert Bork is smiling.

This argument seems unlikely to prevail. The exposure of a pervasive
leftist assault on freedom of speech does not bolster either the case
against free speech or the left's credibility in making that case. But do
you notice also the subtle reversal in the anti-Citizens United argument?
Here's a quote from the Times's day-after editorial denouncing Citizens
United:

The majority is deeply wrong on the law. Most wrongheaded of
all is its insistence that corporations are just like people
and entitled to the same First Amendment rights. It is an odd
claim since companies are creations of the state that exist
to make money.

In 2010, the problem with Citizens United was that it allowed for-profit
businesses to engage in political speech. Now the complaint is that it
doesn't _limit_ free speech to for-profit businesses.