THE POLITICAL SPORT OF TAXATION
Former United States Senator Russell B. Long (D-Louisiana) summed up the political sport of taxation this way: “Don’t tax you, don’t tax me, tax that fellow behind the tree.” Truth be told, the current IRS scandal whereby it violated the First Amendment and the Hatch Act by engaging in biased, viewpoint-based discrimination against Tea Party and Patriot non-profits, although reprehensible, is an old political story. By its very nature, progressive tax policy aims at discriminating against people based on wealth, affiliation, and status. To be sure, there is a difference between public adoption of discriminatory tax laws and non-public, political witch hunts performed by the IRS, but in the end the lesson to be learned is that events of this sort are not isolated but are routine in a state that is so large and taxes so much that it is perennially prone to abuse of power by political incumbents against political challengers.
In Congress, members routinely legislate tax benefits of one kind or another for special interest groups, effectively discriminating in favor of select groups. Administrations, since at least Franklin Delano Roosevelt’s, have depended on IRS political appointees to create tax problems for opponents. Among those the IRS audited in service to President Roosevelt were his critics Senator Huey P. Long (D-Louisiana) (father of the aforementioned Senator Russell B. Long), Catholic priest Charles Coughlin, and Hoover Treasury Secretary Andrew Mellon. President Roosevelt’s son, Elliott, wrote this of FDR: “My father . . . may have been the originator of the concept of employing the IRS as a weapon of political retribution.” President John F. Kennedy’s administration targeted conservative groups, like the John Birch Society, for discriminatory tax treatment. Richard Nixon’s famous “enemies list” included political leaders, think tanks, reporters, and entertainers that were slated for discriminatory tax treatment, acts for which in 1974 the House Judiciary Committee included a recommendation for impeachment, alleging that Nixon violated “the constitutional rights of citizens” by obtaining “confidential information contained in income tax returns for purposes not authorized by law.”
The foregoing abuses of IRS power were somewhat less comprehensive than the present IRS action calling into question the entitlement of at least 140 Tea Party and Patriot non-profits to tax exempt status over several years.
In his May 14, 2013 report entitled “Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review,” Treasury Inspector General for Tax Administration J. Russell George explains that at the behest of members of Congress, he initiated a review to determine whether the following allegations were true: (1) that the IRS targeted specific groups applying for tax-exempt status; (2) that the IRS delayed the processing of targeted groups’ applications; and (3) that the IRS requested unnecessary information from the targeted groups. In short, did the IRS harass certain groups based on their political affiliation with the Tea Party? IG George found that indeed the IRS did.
In particular, the IG found that for a period stemming from at least early in 2010, the “IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions instead of indications of potential political campaign intervention. Ineffective management (1) allowed inappropriate criteria to be developed and stay in place for more than 18 months, (2) resulted in substantial delays in processing certain applications, and (3) allowed unnecessary information requests to be issued.” In short, the IRS harassed selected groups based on its presumption that they were affiliated with the Tea Party. As anyone who has worked in the federal government knows, nothing systematic of this sort goes on without the knowledge of supervisors and, indeed, without at least the passive acquiescence of the agency’s chief political officer, here the IRS Commissioner.
Moreover, while the IRS could have initiated this abuse of power all on its own, members of Congress and Fox News should dig deep to see if there are links to those involved in the re-election campaign of the President or to political operatives in the White House. It is already apparent that Senior U.S. Treasury officials, including Deputy Treasury Secretary Neal Wolin, were notified of the targeting allegations as early as June 2012, yet apparently took no action to halt the abuses until the present. Moreover, Sarah Hall Ingram, the former Deputy IRS Commissioner who headed the Tax-Exempt and Government Entities Division (the one that oversaw the targeting operation) is now the Director of the IRS Affordable Care Act Division (the one that oversees the enforcement of “tax penalties” against those who choose not to buy health insurance under Obamacare).
Actions like the IRS targeting of Tea Party and Patriot groups are particularly galling because they occur in secret, entirely without public scrutiny. Here, the IRS miscalculated, failing to comprehend that the Treasury IG for Tax Administration was truly independent of the IRS and, therefore, could at the behest of Republican members of Congress actually pursue an investigation of the service with vigor. It is no wonder, then, that Acting IRS Commissioner Steven Miller (who recently resigned under pressure from the White House), aware that the report would be damning and that he could not stop its release, moved in early May to beat the IG to the punch and announce the findings, albeit in language that suggested “error” rather than a political witch hunt. That same position (which strains logic to the breaking point) he reiterated to the consternation of most members of the House Ways and Means Committee on May 17 in heated testimony that left little doubt that Miller’s legal problems are just beginning.
Federal law prohibits the partisan targeting undertaken by the IRS employees in the tax exempt organizations division. Under the Hatch Act, an IRS employee may not lawfully discourage political activity or associations by anyone having business before the service. Calculated delays in the processing of Tea Party and Patriot group applications for tax exempt status constitute discouragement of those groups’ political activity.
Actions of this sort violate the First Amendment. The First Amendment forbids government from engaging in speaker and viewpoint based discrimination and from violating citizens’ right to freedom of association. IRS targeting of groups based on their inclusion of Tea Party or Patriot in their names constitutes a speaker and viewpoint-based act of discrimination in violation of the First Amendment. Likewise, the intrusive IRS queries not germane to tax exempt status that were posed to these groups violate the First Amendment and infringe on group members freedom to associate. The delays imposed together with the costs associated with responding to questions that were improper are effective penalties based on the groups’ pro-Tea Party views. Those delays and costs also have the predictable effect of interfering with the organizations’ ability to function affordably as non-profits, which likely depends on IRS confirmation of tax exempt status.
The legal consequences of the IRS decision to target Tea Party and Patriot groups are profound. In addition to the resignation of the acting IRS Commissioner, certain IRS supervisors and employees responsible for the targeting of Tea Party groups will likely be investigated and some prosecuted under the Hatch Act. Private suits by Tea Party and Patriot groups that suffered from the acts of discrimination are likely. Expansive new invesgitations of the agency are likely and legislative reform of the agency may occur.
If further evidence of political bias is found and connections drawn to higher ups in the Obama Administration, we may yet see more resignations and legislation to overhaul the IRS. Obamacare could also be imperiled if the IRS unit responsible for Obamacare “tax penalty” enforcement is neutered.
Subscribe to the NewsWithViews Daily News Alerts!
Members of Congress from both parties fear the politicization of the IRS. Whether legislation will be passed to disable the IRS from abusing its powers in this way remains to be seen. Because of the secretive nature of the IRS, it will be difficult to enforce any legislative reforms. One thing is certain, the new Acting IRS Commissioner Daniel Werfel understands well that the Treasury Inspector General for Tax Administration is a force to be reckoned with, who can, with the stroke of a pen expose IRS abuse in ways that can bring the wrath of the public, Congress, and the President down upon the head of the IRS Commissioner and all those responsible for the abuse.
Click here to visit NewsWithViews.com home page.