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Of all the scandals to occur under Obama’s watch, this one- the IRS- for me is the most chilling. It is bad enough that failure to enforce immigration laws have resulted in an influx of illegal immigrants, that a stupid sting operation resulted in the deaths of border patrol agents, or that the president has overstepped his constitutional boundaries with the EPA, recess appointments, and war powers, but the IRS scandal is reminiscent of Nixon using executive branch agencies to attack his political opponents.
Everyone here is more than familiar with the case. At the center is Lois Lerner, an IRS official who was responsible for overseeing 501(c)4 applications for that agency. Originally cast as the ill-advised operation of a rogue IRS office in Cincinnati, the scandal grew beyond that office.
This administration is supposedly very big on protecting civil rights, but it is certainly selective protection. And it is hypocritical. For example, while the Justice Department under Eric Holder rails against racial profiling and the TSA pats down 90-year-old grandmothers so as not to offend Muslims lest they “racially profile,” the IRS obviously embarked on a program of political profiling when it came to tax-exempt status for groups which opposed the Obama agenda. Who needs goose-stepping brown-shirted goon squads when you have a computer, the tax law and some faceless bureaucrats in suits to keep the electorate in line?
Nothing is more important in the American democracy than participation in the political process. Part of that is political speech. We can disagree all we want with the United States Supreme Court and the Citizens United decision, but the fact remains that until the decision is overturned or Congress passes a law to deal with it, it is the law of the land. Personally, I believe the decision was correctly decided and that Obama’s characterizations are way off the mark.
And the tax law, specifically that part which applies to 501(c)4 organizations, is what it is. Of course the IRS should have the power to determine whether any group should receive tax exempt status lest any group is just rubber-stamped. But, when they use that power to selectively screen out for tax exempt status special scrutiny of groups that happen to disagree with the man at the top, then there is a serious constitutional problem. Part of that involved questions about applicant reading and praying habits. And they talk about McCarthy witch hunts?
I have said all along that there likely is no smoking gun e-mail, memo, letter, etc. which would directly link Obama himself to a directive to the IRS to target Tea Party groups. We don’t really need a smoking gun. Instead, he created the environment of demonization of these groups so that lower level officials with too much power took it upon themselves to carry the presidential rhetoric a step further. There likely are some private presidential conversations where Obama expressed his disdain for Tea Party groups, but I doubt he directly said, “Let’s target them through the IRS.”
However, this does not make the actions and Obama’s culpability in those actions no less serious. In either case, his IRS which is part of his Treasury Department looks cheap, scandalous, and inept.
The question remains as to what laws, if any, were broken by the IRS in targeting Tea Party groups. Let us leave aside the possibility of perjury before Congress for a moment, although that is a major issue. It is understandable that in the wake of the Citizens United decision, there was an avalanche of 501(c)4 applications seeking tax exempt status coming into IRS field offices. It may also be true that the majority of these applications were from conservative or tea party policy advocacy groups. However, that does not change the overall equation. The IRS is charged with determining whether they are social welfare/reform groups, or whether they are engaged in electioneering. Electioneering involves, in effect, campaigning for someone or against someone. Campaigning against an agenda from the president with which they disagree is not electioneering, nor is it campaigning. For example, suppose Mitt Romney is the president and a group emerges that is opposed to decreasing the capital gains tax. They are against his agenda, not Mitt Romney per se. It may just be that every single one of its members is a registered Democrat and voted for Obama. But, the stated purpose of the group- be it the more amorphous opposition to a liberal presidential agenda to a more specific opposition to a decrease in the capital gains tax like the hypothetical- is what determines whether they are a social welfare group or whether they are an electioneering organization. And that is where the analysis should end.
Instead, the IRS selectively screened out certain groups through the most crude method possible- the presence of certain words in the organization’s name. But, their ineptitude and their crudeness makes the selectivity no less a reality. In effect, a government agency (a powerful one at that) was actively discriminating against a whole class of people because of key words in an organization’s name. If racial profiling is a violation of one’s constitutional rights, then “word-presence” profiling is also a violation of one’s constitutional rights. Throwing in a few “progressive” groups for increased scrutiny does not excuse the disproportionate differential treatment shown towards the conservative groups.
The second possible legal implications here (and they do not reach into the Oval Office) are possible violations of the Hatch Act. First passed in 1939 and last amended in 2012 the law is designed to prohibit executive branch employees from engaging in partisan political activities. Chief among those prohibitions are that they may not use their position of authority to interfere in elections and solicit or discourage political activity with anyone with business before their agency. Just looking at the clear wording, one obviously can determine that there were violations of the Hatch Act.
In all fairness to Lois Lerner, she had been with the IRS since 2001 and in her supervisory capacity since 2006. And in anticipation of the 2010 midterm elections there was a flood of 501(c)4 applications. She is on record, in a speech at Duke University, discussing the amount of applications and the pressure being placed on the IRS. She specifically stated that in the wake of Citizens United decision, the Federal Election Commission was powerless and that “the IRS was getting screamed at by everyone to do something about it.” That comment is disingenuous since it was the Democrats, and specifically Obama, who were doing the screaming.
In that same speech, she was asked whether any groups had crossed the line and engaged in electioneering. She noted that tax exempt social welfare organizations were allowed to say “vote for Joe Blow,” but that she would have to wait until their 990 forms were filed to determine if they went over the line. And that, in a nutshell, is the solution. Instead of singling out groups because of certain key words, they could have investigated these groups after the fact, rescinded their tax exempt status and sought back taxes.
The third law likely committed was perjury before Congress by IRS officials in an attempt to cover their tracks over a very clumsy, partisan political action. We do know from e-mails that individuals in the Washington office of the IRS were aware of and condoned the targeting activity. Some even wrote drafts giving the activity alleged legal cover. And, of course, we have the missing e-mails which make an 18-minute gap on an Oval Office tape in 1972 look trivial in retrospect.
This whole thing, however, was started by Obama and his demonization of tea party groups and the increased flow of money into the political process. That Lerner speech at Duke was less than two months after Obama’s blatantly false characterization of a Supreme Court decision during the State of the Union Address. Just as Richard Nixon planted the seeds in the heads of underlings to use the FBI, CIA and IRS to target his political enemies, Barack Obama did the same here. Obama was just more sly in his method. Or he learned from Nixon and has covered his tracks better.