TaxProf Blog

Paul L. Caron
Dean





Thursday, March 12, 2015

The IRS Scandal, Day 672

IRS Logo 2Wall Street Journal editorial, Eric Holder’s Speech Police: Justice Gears Up to Prosecute Campaign ‘Coordination’:

You know the 2016 election is heating up when the Justice Department announces it’s gearing up to prosecute campaign-finance “coordination” between candidates and outside groups. If you thought the IRS targeting of conservative nonprofits was troubling, watch what Justice can do to criminalize political speech. ...

A coordination investigation can be started on almost any pretext. All you need is an allegation that someone talked to someone they should not have. Once the investigation makes it over that low evidentiary hurdle, the feds can comb through every shred of personal and group communications to find illegal contact.

We’ve seen how this wrecking ball works in Wisconsin, where Governor Scott Walker’s conservative allies had their records seized and homes raided based on mere claims of coordination. Justice is now essentially giving itself sway to probe every Republican presidential campaign based on an accusation from some left-wing activist. ...

The head of Justice’s Election Crimes Branch, Richard Pilger, is a proponent of criminal coordination investigations at the Justice Department. Two attendees tell us that at a Practicing Law Institute seminar in September 2014 Mr. Pilger said this explicitly.

Mr. Pilger was also a foot on the gas pedal during the IRS’s increased screening of conservative 501(c) groups. In 2010 he reached out to then IRS tax-exempt chief Lois Lerner about prosecuting nonprofits that engaged in political activity for making false statements on their tax returns. In an October 2010 email exchange, Ms. Lerner and Mr. Pilger discussed the transfer of data on 501(c) organizations. The Justice Department ended up with a database of 1.1 million documents, including protected taxpayer information.

Ms. Lerner knows all about campaign “coordination,” having led a multiyear FEC coordination investigation into the Christian Coalition in the 1990s. Ms. Lerner was pursuing a theory that the group had illegally coordinated its issue advocacy with candidates. That theory was rejected in federal court.

The Justice Department may now be trying to pick up where the IRS and Ms. Lerner left off. Justice spokesman Peter Carr emailed us a statement that the universe of potential criminal prosecution is broad: “The opportunity to commit the crime has increased dramatically with changes in the law that have caused a substantial increase in the amount of independent expenditures and the number of independent expenditure entities.” That’s a new business opportunity for activists at the Campaign Legal Center and Democracy 21 who wrote to Justice last week celebrating the news. But coordination investigations touch on the core of First Amendment protected political speech.

The prospect of a Justice Department asking who talked to whom and when during a political campaign should give even liberals the chills.

Meantime, GOP campaigns better lawyer up because Mr. Pilger’s speech police are gunning for you.

https://taxprof.typepad.com/taxprof_blog/2015/03/the-irs-4.html

IRS News, IRS Scandal, Tax | Permalink

Comments