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IRS and FEC Gag Free Speech!
09 FEB 2004 - Drug Policy Alliance


The IRS and FEC are considering rulings that could severely restrict the free speech rights of the Drug Policy Alliance and other issue advocacy groups. The proposed rulings are vague in that they do not clearly state exactly which communications would be illegal. This means that the federal government could selectively enforce the rules in order to clamp down on any speech or advertising it does not approve of or considers politically threatening. Even though the Drug Policy Alliance does not endorse or oppose specific candidates for public office, the proposed IRS and FEC actions could hamper our efforts to contact fellow reformers like you about candidates’ stances on drug policy reform issues during election campaigns. Any member of Congress up for re-election could be able to push their legislation into law without hearing the voice of the American people.

The IRS ruling (Revenue Ruling 2004-6) could penalize drug policy reform and other nonprofit organizations that are publicly critical of any elected official who is running for re-election. Non-profit educational organizations like the Drug Policy Alliance cannot work to defeat or support federal candidates, but can educate voters on where politicians stand on certain issues. So long as the Alliance and other organizations do not explicitly call for the defeat or re-election of a politician we do not run afoul of the law. However, Revenue Ruling 2004-6 muddies these regulations to make it illegal for advocacy group to do anything that the IRS determines to be an attempt at defeat or support a candidate for federal office. The change appears minor but in fact makes the regulations more vague, giving the IRS a wide scope to call many advocacy-group actions illegal.

Read the complex IRS ruling.

The FEC ruling (Advisory Opinion 2003-37) could prohibit the Alliance and other organizations from communicating any message - through e-mails, newspaper ads, television commercials or brochures - that “promotes, supports, attacks, or opposes” any candidate for federal office. It does this by re-defining the definition of a “campaign expenditure” to include communications that promote or attack federal candidates. Because the Alliance and similar non-profits are prohibited under existing law from making campaign expenditures, this ruling could make it illegal for us to send you e-mails criticizing the actions of a Member of Congress if they also happen to be running for re-election. Even sending you an e-mail saying that your Senator just voted the wrong way on a bill could become illegal. For instance, Senator Biden first introduced his controversial RAVE Act just a few months before the 2002 elections. Because he was up for re-election that year, it may have been illegal for the Alliance to alert you to the bill had the FEC and IRS rulings been in place then.

Read the complex FEC ruling.

An essential part of the Alliance’s work is to keep fellow reformers informed about the actions and votes of elected officials - whether a move by President Bush to crack down on medical marijuana or a Congressman’s bill to mandate student drug testing. These proposals could severely limit our ability to do this and work to reform America’s ‘War on Drugs’.


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A special thanks to Keith for all his support and insight.
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