Paul L. Caron
Dean


Saturday, May 9, 2015

The IRS Scandal, Two Years And Counting

IRS Logo 2The American Spectator, Making Sense of the IRS Scandal: Is Sympathy for the Devil Still Possible?:

Two years ago this month, former IRS official Lois Lerner revealed that the agency had discriminated against scores of right-leaning nonprofits on the basis of their political beliefs. The public called for accountability and got something vaguely resembling it in the form of resignations, investigations, and congressional debates. But despite the flurry of activity, the underlying issues that contributed to the IRS scandal remain unresolved, and the agency is still firmly embroiled in the messy business of policing political speech.

It’s enough to make one wonder: two years later, have things really changed? Or could it happen again?

Starting in 2010, IRS agents were instructed to apply extra scrutiny to applications for nonprofit status from conservative and tea-party organizations, culminating in those applications being sent to a special office where they were subjected to lengthy delays and invasive questioning. This was the agency’s inept response to the Citizens United decision, which freed all organizations to speak about elections, so long as they do so independently of candidates and parties. Critics of the decision, including several U.S. Senators, pressured the IRS to do anything in its power to stop groups from exercising their newfound freedom. Lerner herself remarked to a Duke University panel that “everybody is screaming at [the IRS] right now.”

But the IRS is a revenue collection agency, not a campaign finance regulator, so it was hopelessly ill-equipped for the task. It failed to treat groups equally or fairly, instead singling out conservative and tea party groups for an incredible level of scrutiny. The IRS demanded the personal information of groups’ supporters, copies of minutes from board meetings, résumés of current and former individuals involved with the organization, and even past intern history, copies of social media postings, and print outs of every page of an organization’s website.

President Obama called the IRS’s conduct “outrageous” and promised “I will not tolerate it. And we will make sure that we find out exactly what happened.” Lerner and IRS Commissioner Steven T. Miller resigned, countless congressional hearings were held to rail against the violation of taxpayers’ First Amendment rights, and multiple investigations — some of which are still ongoing — commenced to shed bits of light on the matter. ...

Lois Lerner may be gone, but the IRS is still threating to infringe upon First Amendment rights. In the same vein, a new TIGTA report issued on April 30 praised the IRS for reducing its backload of applications and making some changes to its screening process, such as standardizing the questions asked of groups, but noted that the IRS still “does not have a clearly defined test for determining whether an organization’s request for exemption as a social welfare organization should be approved.”

Things might be a little better, but they’re still not good, and there’s nothing to stop the IRS from deciding to target groups again in the future. The failure to secure the rights of nonprofits in the aftermath of the scandal is a sobering reminder that passion for accountability is not enough. We also have to be wise, and address policy problems where they exist instead of merely searching for individuals to blame.

Disputes over the language of the 501(c)(4) statute, combined with a lack of clear guidance from the Federal Election Commission and gridlock in Congress, left the IRS to regulate in an area where it lacked sufficient expertise to act responsibly. The IRS deserves more than its fair share of rebuke for targeting groups with views it didn’t like, for being dishonest about its activities, and for responding to criticism by proposing even more restrictive regulations. But whether its errors were committed in good faith or not, whether they were catastrophic or mere blunders, the IRS simply should never have been put in position to make them.

As the agency works on its new proposal, it should rely on the feedback it received last time. That means recognizing that nonprofit advocacy groups have a valuable role to play in civic life, protecting that role, and clarifying the rules so that small and volunteer-run organizations can be assured their activities are legal and their supporters’ private information is secure.

That’s the best we can hope for, but it shouldn’t be up to the IRS to make these decisions. That job belongs to Congress. Clarifying the language of the 501(c)(4) statute to explicitly protect the political speech of nonprofit groups would finally chart a path forward out of this regulatory morass. It would be a blessing both to nonprofit groups and the IRS.

On the two-year anniversary of revelations of the IRS scandal, perhaps it is time to leave behind the search for a villain and instead solve the problem. Until advocacy nonprofits have their First Amendment rights secured, the threat of future targeting lingers, no matter who is in charge

https://taxprof.typepad.com/taxprof_blog/2015/05/the-irs-scandal.html

IRS News, IRS Scandal, Tax | Permalink

Comments

"On the two-year anniversary of revelations of the IRS scandal, perhaps it is time to leave behind the search for a villain and instead solve the problem."

The villain is the problem. Lawful people follow laws and no amount of laws will stop lawbreakers from breaking them.

"Until advocacy nonprofits have their First Amendment rights secured"

The problem is that they are secured for Democrats but not the rest of us. BarackObama.com and the Clinton Foundation are both non-profits engaged in politics. Under Obama, the DOJ even ran special workshops to help Democrat activist groups engage in politics. The problem isn't unclear language but rather the intentional abuse of power to target political dissidents while treating Democrat aligned groups with favoritism.

Posted by: wodun | May 9, 2015 12:27:05 PM

Congress punts to IRS all the time in the way of legislative regulations. The reason for mentioning that is that IRS is in the position of having to come up with "how to" all the time. 501(c)(4) is not at all unique.

Posted by: dennism1 | May 9, 2015 1:17:06 PM

The FEC's hearings conducted a few months ago to "determine" whether there is a need for the FEC to review the content od all blogs and prohibit all politicial speech 30-60 days prior to an election is as scarey as the IRS Scandal.

Posted by: JoYo | May 9, 2015 1:32:25 PM

"On the two-year anniversary of revelations of the IRS scandal, perhaps it is time to leave behind the search for a villain and instead solve the problem."

The first commenter is right. Villains are the problem. If they are named, shamed, and incarcerated, the problem ends. That's what was done in the early 1950's to the Truman IRS, and it worked--- things were a lot better for a long time.

Posted by: Eric Rasmusen | May 10, 2015 5:45:05 PM