Former FEC commissioner and law professor Brad Smith has a terrific op-ed in the Wall Street Journal that provides a reluctant media with all the evidence it needs to understand why the IRS investigated conservative nonprofits for speaking out about politics. Starting with the Citizens United decision in 2010, Smith provides a timeline of demands by prominent politicians that the IRS clamp down on allegedly “shadowy” nonprofits for doing exactly what the Supreme held they had a right to do in Citizens United—spending money on political speech. As he sums up the point, “The political pressure on the IRS to delay or deny tax-exempt status for conservative groups has been obvious to anyone who cares to open his eyes. It did not come from a direct order from the White House, but it didn’t have to.”
I’ve made the same basic point that Smith does in his op-ed, but even I was surprised by the sheer weight of the evidence he provides. The conclusion is undeniable: The IRS targeted conservative nonprofits because politicians—and, I would add, the media and various groups that complained incessantly about Citizens United and “money in politics”—told it to. Now consider for a moment that the reaction to the IRS targeting scandal has varied from denial that there is anything to worry about to calls to expand that targeting beyond conservatives to include all nonprofits, and ask yourself this: How can all of this happen—not just the IRS’s targeting of groups for speaking out, but the support for it among politicians and in the media—in America?
There are a number of answers to that question, but I want to offer one that is entirely ignored in this debate, but obvious if you know where to look. The answer is that we have accepted the premise, in various ways, that the government should “equalize” everyone’s ability to influence politics and elections. Because people influence politics and elections primarily by speaking, equalizing influence means equalizing speech. In his 1996 book, The Irony of Free Speech, law professor Owen Fiss explained what this means in practice. The government, according to Fiss, may “have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way.”
That premise is built into the campaign finance laws. It was the government’s primary argument in support of those laws when they came before the Supreme Court in the mid 1970s in a case called Buckley v. Valeo. The Court rejected the equality rationale as a legal basis for the laws, but it accepted other rationales and ended up leaving the laws largely intact. The equality rationale never died and has remained an animating force in people’s thinking about the campaign finance laws and efforts to influence politics ever since. That’s one reason politicians, the media, and other supporters of campaign finance laws don’t hesitate to sic the IRS on groups that they believe are speaking “too much.”
Here’s the takeaway: Equality of speech and freedom of speech are opposites. The question is, which are we going to choose?