Did you ever notice in high school how that moody friend who would occasionally punch a hole in the drywall to demonstrate that they were really mad or upset always picked a spot between the studs to make their mark?
But outraged tea partiers are in for an uphill battle.
For all the speechifying about free speech, First Amendment rights don’t apply to the issue at the heart of those suits: tax-exempt status. Such arguments “are unlikely to persuade courts because tax exemption has not been thought to be a First Amendment issue, because the organizations have the right to speak even if they’re taxable,” explains Frances Hill, a professor at the University of Miami School of Law. “The idea that their status may be delayed or denied doesn’t mean that their First Amendment rights have been denied or imperiled.”
Beyond the First Amendment issues, legal experts who have reviewed the lawsuits think they have a limited chance of success, largely because the courts have very narrow authority to do what lawyers like Sekulow are asking them to do—that is, to award damages for alleged constitutional violations or order the IRS to recognize their nonprofit status.
Matthew Journy and Jeff Tenenbaum, tax lawyers at the DC firm Venable, analyzed Sekulow’s complaint and concluded that the court is likely to dismiss 23 of the 25 plaintiffs straight away. Here’s why: In one part of his case, Sekulow is suing under a section of the Internal Revenue code that allows a nonprofit to ask a judge to order the Treasury Department to recognize its nonprofit status if the IRS has either refused to do so or improperly delayed a determination. But that part of the code applies only to nonprofits seeking 501(c)3 status, a tax-exempt designation that has tight restrictions on political activity and that allows donors to deduct their contributions from their taxes. Only two of the 25 plaintiffs in the case sought such a designation. The rest applied for 501(c)4 status, which allows limited political activity but not tax-deductible contributions. These nonprofit entities are not covered by the statute Sekulow is suing under. Even if they were, 13 of the plaintiffs have already won the only real remedy available under that particular provision: tax-exempt status. (Sekulow didn’t return a call for comment.)