"It shouldn't need to be said," announced two of the ACLU's top staff said on Monday in a rebuke of the IRS targeting of rightwing advocacy groups, but they said it anyway: "Even the tea party deserves First Amendment protection."
Despite the grave concern many progressives have about the rise of secretive, "dark-money" independent groups that grew up in the aftermath of the Citizens United Supreme Court decision, none are defending what increasingly looks like inappropriate behavior by officials at the independent agency in charge of administrating the nation's tax system.
In their op-ed quoted from above, Michael Macleod-Ball and Gabe Rottman at the ACLU's Washington Legislative Office, say that what appears to be "aggressive enforcement" and "unconstitutional practices" by the IRS should be troubling to all Americans regardless of ideology or party affiliation.
The episode, they said, exhibits why everyone—"from the most liberal to the most conservative"—should vigilantly "guard their First Amendment rights" and gives just one more example of "why giving the government too much power to limit political speech will inevitably result in selective enforcement against unpopular groups."
Meanwhile, new reporting suggests that much more was known about the nature of the agency's focus on rightwing groups and that it may have extended well beyond the office in Cincinnati, where early statements from IRS spokeswoman Lois G. Lerner on Friday said the controversial activity was contained.
As the Washington Post reports:
Internal Revenue Service officials in Washington and at least two other offices were involved with investigating conservative groups seeking tax-exempt status, making clear that the effort reached well beyond the branch in Cincinnati that was initially blamed, according to documents obtained by The Washington Post.
IRS officials at the agency’s Washington headquarters sent queries to conservative groups asking about their donors and other aspects of their operations, while officials in the El Monte and Laguna Niguel offices in California sent similar questionnaires to tea-party-affiliated groups, the documents show.
IRS employees in Cincinnati told conservatives seeking the status of “social welfare” groups that a task force in Washington was overseeing their applications, according to interviews with the activists.
Lois G. Lerner, who oversees tax-exempt groups for the IRS, told reporters Friday that the “absolutely inappropriate” actions were undertaken by “front-line people” working in Cincinnati to target groups with “tea party,” “patriot” or “9/12” in their names.
And the Associated Press reports that higher-ups were informed about the aggressive auditing of specific groups, but failed to disclose the details to Congress despite possible opportunities to do so:
When members of Congress repeatedly raised concerns with the IRS about complaints that tea party groups were being harassed last year, a deputy IRS commissioner took the lead in assuring lawmakers that the additional scrutiny was a legitimate part of the screening process.
That deputy commissioner was [Steven T. Miller], who is now the acting head of the agency.
Camp and other members of the Ways and Means Committee sent at least four inquiries to the IRS, starting in June 2011. Utah Sen. Orrin Hatch, the top Republican on the Senate Finance Committee, sent three inquiries. And Rep. Darrell Issa, R-Calif., chairman of the House oversight committee, sent at least one.
None of the responses they received from the IRS acknowledged that conservative groups had ever been targeted, including a response to Hatch dated Sept. 11, 2012 — four months after Miller had been briefed.
In several letters to members of Congress, Miller went into painstaking detail about how applications for tax-exempt status were screened. But he never mentioned that conservative groups were being targeted, even though people working under him knew as early as June 2011 that tea party groups were being targeted, according to an upcoming report by the agency's inspector general.
The IRS has not made new comments to address these recent reports, but Miller is expected to testify before Congress regarding the scandal later this week.
As the lawyers from the ACLU acknowledge, the fact that some of the IRS behavior can be attributed to the "growth in applications and the pressure to uncover "sham" 501(c)(4) groups" spawned by Citizens United, there is still no excuse of the appearance that the audits were politically motivated. They write:
Although the IRS claims this was an honest mistake, these revelations are troubling on many levels. For instance, there are several proposals circulating in Washington right now that would make it much easier for the IRS and other regulators to force political groups to disclose their donors. These disclosure requirements would apply even when the group is advocating purely on an issue of public interest, from clean air to abortion, and would apply to groups of all political persuasions and not just to groups supporting or opposing candidates for office.
The ACLU has expressed concern with these disclosure requirements precisely because they open the door to selective enforcement. Such concerns are often dismissed as speculative and overly pessimistic, but the IRS apology shows that concerns over selective enforcement are prescient. Those in power will always be tempted to use political speech restrictions against opposing candidates or causes.
New reality in post-Citizens United world
MSNBC's Chris Hayes dug deeper on Monday, showing that as 'scandal-fever' strikes the Obama administration this week, there are layers to the IRS story—including a "scandal you're not hearing about"—that should not be ignored:
And the Huffington Post also explored the significant increase of political actions groups in recent years:
This increase came after two major Supreme Court decisions -- Federal Election Commission v. Wisconsin Right to Life in 2007 and Citizens United v. FEC in 2010 -- opened the door for 501(c)(4) groups to engage in increasing amounts of political activity.
"There's a pretty direct link between the Citizens United line of cases and why the IRS is put in this position," said Rick Hasen, an election law professor at the University of California-Irvine, "although it does nothing to explain how the IRS decided to deal with this problem."
The Supreme Court rulings undid a string of campaign finance regulations and opened up loopholes for groups to avoid disclosure. The tax-exempt 501(c)(4) nonprofit, which can accept unlimited contributions from any source and whose donors can be kept secret, became the primary vehicle for operatives looking to engage in politics with "dark" money. The number of applications for 501(c)(4) status spiked, thrusting the IRS into a precarious position of overseeing partisan politics in a way that it had never done before.
"It's just another example of just the inability of the IRS to really enforce what are really political election campaign regulations," said Ofer Lion, a lawyer who works with tax-exempt organizations at Hunton & Williams. "These are career civil servants down in the IRS basement somewhere without adult supervision trying to deal with problems they don't know how to deal with."