The IRS Quizzing Pro-Life Groups About Their Intentions and Their Speech

Apropos the recent stories about the IRS’s quizzing conservative groups about their intentions and their speech, and delaying approval of those groups’ tax-exempt status, here are two items from a few years ago:

1. In 2011, the IRS quizzed Christian Voices for Life about whether they “[do] education on both sides of the issues” and whether they “attempt to talk to [people] trying to enter a medical clinic, or any other building facility.”

But though groups that engage in advocacy related to political campaigns, or that engage in substantial advocacy related to legislation, can’t have 26 U.S.C. § 501(c)(3) status, there is no such limitation for groups that try to talk to people entering medical clinics. Moreover, Big Mama Rag, Inc. v. United States (D.C. Cir. 1980) pretty strongly suggests that § 501(c)(3) status can’t be limited to groups that are evenhanded in their speech (“[w]e can conceive of no value-free measurement of the extent to which material is doctrinaire”), and indeed many groups that engage in one-sided advocacy (PETA, the ACLU Foundation, and more) have § 501(c)(3) status. After the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

2. In 2009, the IRS allegedly demanded that the Coalition for Life of Iowa promise, as a condition of getting tax-exempt status, that it wouldn’t “picket” or “protest” outside Planned Parenthood or similar groups, or organize others to do so. It also demanded that the Coalition “explain how all of your activities, including the prayer meetings held outside of Planned Parenthood are considered educational as defined under 501(c)(3),” “explain in detail the activities at these prayer meetings,” and “explain in detail the signs that are being held up outside of Planned Parenthood and explain how they are considered educational.”

If it is indeed standard practice for the IRS to demand that all groups that engage in protesting and demonstrating — liberal, conservative, or otherwise –“explain in detail” all their past speech qualifies as “educational,” I’d like to hear that; § 501(c)(3) does limit the exemption to (among other things) “charitable” and “educational” groups, and if the IRS is defining “educational” narrowly and applying the narrow definition evenhandedly, then that may explain why it was applied to the Coalition for Life of Iowa. But my suspicion is that most groups aren’t required to provide such detail about their speech. Again, after the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

Thanks to Paul Milligan for the pointer. I should note that the groups I mention were represented by the Thomas More Society, with which I’m working on my pro bono Scott v. Saint John’s Church in the Wilderness petition; but they didn’t approach me about blogging on this subject.