The common good on trial at the IRS

There was high drama at the congressional IRS inquiry when John Eastman, chairman of the National Organization for Marriage and a professor at Chapman University School of Law, scolded Rep. Earl Blumenauer, D-Ore., for defending and emboldening IRS partisan abuses (see video clip below): “I think having organizations parading as being social welfare organizations and then being involved in political combat harkens back to why the statute [IRC 501(c)(4)] a hundred years ago said that they were prohibited, and I wholeheartedly agree”

Eastman responded boldly. “Rep. Blumenauer, it’s your kind of statements that have empowered IRS agents to make determinations about which organizations qualify for the public good and which do not. The notion that defending traditional marriage doesn’t qualify as a defense of the public good is beyond preposterous.”

The IRC 501(c)(4) exemption from taxation dates back to the Tariff Act of 1913, but it is the 1958 U.S. Supreme Court decision NAACP v. Alabama that protects these groups from having to reveal donor names and the amounts donated. The law applies to any organization “operated exclusively for the promotion of social welfare,” which means “it is primarily engaged in promoting in some way the common good and general welfare of the community.”

Blumenauer cites (at 2:15:30) Eastman’s reference to “his chief adversary in their political struggles” as proof enough that NOM is a political, not social welfare, organization engaged in “political combat.” But an IRS document offers this example of a 501(c)(4)-qualified—yet political and contentious—organization:

“Organization A conducts research, seminars, forums, and other educational programs for the public on issues of public concern. It also engages in substantial lobbying activities. Its activities are under the direction of a Board of Directors consisting of prominent individuals with backgrounds in academics and/or government. While A’s philosophy on the issues is generally consistent with that of a major political party, it conducts its activities in a non-partisan manner and is not affiliated in any way with the political party.” (Emphasis added.)

Blumenauer’s distinction between education for the common good and publicly advocating a policy position in sharp disagreement with some is ultimately unsustainable. Politics is not just about private factional interest. James Madison in The Federalist Papers No. 10 describes a faction as a group united by passion or interest against “the rights of other citizens, or … the permanent and aggregate interests of the community,” i.e., the common good.

There is that, but politics is also about competing views of the common good. Politicking at its best is education, and wise public policy provides for the public welfare. Politicking can also be selfish, but allowing government to judge the difference, versus identifying direct support for a party or candidate, invites persecution of “wrong-thinking” people, consciously or unconsciously, from the lower ranks or from on high.