The IRS Scandal, Day 1307: Group Seeks Summary Judgment On Claim That Rev. Rul. 2004-6 Is So Vague That It Allows The IRS To Target Conservative Groups

Plaintiff's Reply Brief in Support of its Motion for Partial Summary Judgment, Freedom Path v. Lerner, No 3:14‐CV‐1537‐D (D.C. N.D. TX) (citations omitted):

The Government argues that the jeopardy for any group facing the “facts and circumstances” test is neither (1) being subjected to an unconstitutionally vague process nor (2) a chilling of its constitutionally‐protected speech. But the Government is incorrect in both respects, and even a cursory analysis of the “facts and circumstances” test reveals a regulatory test that is unconstitutional under the First and Fifth Amendments to the United States Constitution.

Over the years, the Internal Revenue Service has made clear that social‐welfare organizations, which are organized under § 501(c)(4) of the Internal Revenue Code, may make political communications so long as those communications are not “the primary purpose” of the organization. Those political communications are speech, and the ability to engage in it is an enormous benefit to social welfare organizations. Yet it is the IRS, which employs an unconstitutional test to analyze these organizations’ activities, that plays gatekeeper for such speech. And because the “facts and circumstances” test of Revenue Ruling 2004‐6 is so vague and overly broad, it allows the IRS—whether purposeful or not— to provide the benefit of speech for groups whose political persuasions the IRS prefers and to deny it to groups whose political persuasions the IRS dislikes. ...

Finally, the Government notes that Freedom Path, or any other social‐welfare organization or tax‐exempt applicant, may appeal any adverse determination the IRS may make in the future. But an appeal that adjudicates results created by an unconstitutional process—especially without the opportunity to first challenge the process itself—is, in fact, no remedy at all.

• The IRS Scandal, Day 1306: Government Rejects Claim That Rev. Rul. 2004-6 Allows The IRS To Target Conservative Groups (Dec. 5, 2016)
• The IRS Scandal, Day 1305: Group Seeks Summary Judgment On Claim That Rev. Rul. 2004-6 Is So Vague That It Allows The IRS To Target Conservative Groups (Dec. 4, 2016)
• The IRS Scandal, Day 1304: 'The IRS Has Never Stopped Targeting Conservatives' (Dec. 3, 2016)
• The IRS Scandal, Day 1303: Group Sues IRS For Failure To Produce Communications With Joint Committee on Taxation (Dec. 2, 2016)
• The IRS Scandal,  Day 1302: The 'Corrupt' IRS Is Still Persecuting The Tea Party (Dec. 1, 2016)
• The IRS Scandal, Day 1301: If Koskinen Is Impeached Or Fired, Trump Could Appoint New IRS Commissioner To Go Easy On His Taxes (Nov. 30, 2016)
• The IRS Scandal, Days 1201-1300 (Aug. 22, 2016 - Nov. 29, 2016)
• The IRS Scandal, Days 1101-1200 (May 14, 2016 - Aug. 21, 2016)
• The IRS Scandal, Days 1001-1100 (Feb. 4, 2016 - May 13, 2016)
• The IRS Scandal, Days 901-1000 (Oct. 27, 2015 - Feb. 3, 2016)
• The IRS Scandal, Days 801-900 (July 19, 2015 - Oct. 26, 2015)
• The IRS Scandal, Days 701-800 (April 10, 2015 - July 18, 2015)
• The IRS Scandal, Days 601-700 (Dec. 31, 2014 - April 9, 2015)
• The IRS Scandal, Days 501-600 (Sept. 22, 2014-Dec. 30, 2014)
• The IRS Scandal, Days 401-500 (June 14, 2014 - Sept. 21,2014)
• The IRS Scandal, Days 301-400 (Mar. 6, 2014 - June 13, 2014)
• The IRS Scandal, Days 201-300 (Nov. 26, 2013 - Mar. 5, 2014)
• The IRS Scandal, Days 101-200 (Aug. 18, 2013 - Nov. 25, 2013)
• The IRS Scandal, Days 1-100 (May 10, 2013 - Aug. 17, 2013)