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“The subjective test creates a chilling effect that forces conservative groups nationwide to self-censor rather than risk government retaliation,” said attorney Chris Gober, who represents Freedom Path.
Translation: the IRS is still intimidating conservative organizations into silence.
If you thought the targeting stopped after the scandal broke, think again.
Incredibly, in 2020 — seven years after the IRS scandal supposedly ended — Freedom Path’s application was flat-out denied. And the reason? The same exact “Facts and Circumstances Test” that had already been exposed as unconstitutional during the Lois Lerner hearings.
This isn’t a theory. It’s a documented fact.
The 11-part test is so open to interpretation that it gives IRS agents virtually unlimited power to deny nonprofit status based on personal political bias. One part penalizes any message that “coincides with an electoral campaign,” which could include virtually all conservative commentary during an election year. Another factor flags any message that “distinguishes” one candidate from another — which is the literal definition of political speech.
What makes this even more outrageous? Under President Donald Trump, his own Department of Justice actually sided with the IRS — defending the same test used to punish conservatives.
You read that right.
Trump’s DOJ told the court that the IRS should be allowed to continue using this test — a tool that lets bureaucrats play judge and jury over which political opinions are acceptable.
The case is now headed back to Washington, D.C., where U.S. District Judge Jia M. Cobb will decide whether the test should finally be declared “unconstitutionally vague.”
The absurdity of this situation is highlighted by the fact that the Supreme Court has already ruled against similar tactics. In the landmark Citizens United case, Justice Anthony Kennedy condemned the government for using vague standards to regulate political speech, warning that such power allows officials to decide what speech is allowed — and what isn’t.
Yet the IRS continues to ignore that ruling, clinging to a version of the same test as if the Constitution doesn’t apply.
The 2014 House Oversight Committee left no room for debate. After the IRS adopted new targeting criteria in February 2010, not a single Tea Party group was approved for tax-exempt status. Meanwhile, liberal groups breezed through the process.
“The IRS wanted every communication about ObamaCare,” said attorney Cleta Mitchell, who represented multiple conservative groups. That kind of surveillance was never applied to the left.
This isn’t just about one nonprofit. It’s about whether the federal government can continue to use ambiguous language to silence opposition.
Chris Gober, a Harvard-trained legal powerhouse, now leads the charge. His firm represents high-profile conservatives, including Elon Musk’s America PAC and numerous Republican lawmakers.
The New York Times even described Gober as a “swaggering Texas-based lawyer” forging a new conservative legal empire.
The real damage from the IRS scandal wasn’t just in the denials — it was in the fear it created. Freedom Path admitted they pulled a TV ad supporting the repeal of ObamaCare, simply because they were afraid of triggering another attack from the IRS.
That’s the power of vague laws. They don’t just punish people after the fact — they stop free speech before it even happens.
How many other conservative groups have stayed silent out of fear of IRS retaliation?
Despite years of hearings and public outrage, the same tool that allowed the IRS to target conservatives remains in place. And unless it’s struck down in court, it could be used again at any moment against another group that threatens the left’s agenda.
Freedom Path’s case could finally end the IRS’s ability to weaponize the tax code. It’s not just about fairness — it’s about defending the First Amendment for every conservative voice in America.
If they win, the Obama-era weapon might finally be dismantled for good.
