As fact-checkers parse the president's words on the Benghazi attack and the Associated Press demands answers for DOJ wiretapping, another shadow looms over the Obama administration that differs from the others. While Obama insists there is no "there there" concerning Libya and the DOJ legal team prepares for congressional hearings on its Associated Press wiretapping, every official to speak out on the Internal Revenue Service's heightened scrutiny of conservative organizations has condemned the unconstitutional behavior. The problem for the IRS and Obama administration, however, is the constant flow of new information that reveals the lies told previously to Congress, the media, and the American people.
Let's back up: in the spring of 2012, dozens of conservative groups (including many Tea Party organizations) reported that the IRS was holding up their applications for tax-exempt status as 501(c)(3) or 501(c)(4) organizations. Furthermore, reports began streaming in about lengthy questionnaires asking intrusive questions about their organization, members, donors, and family members that implicate First Amendment freedoms of speech and association.
The IRS's heightened scrutiny sought information about donors, members' and their families' connections to and communications with elected officials, and so much more. Why did these conservative groups receive these follow-up requests for information of this sort? How were groups like the Richmond Tea Party selected for more information? In the wake of Citizens United and unfounded liberal nightmares that the Koch brothers were furtively turning the entire right side of the political spectrum into a zombie army, we now know that the IRS divisions assessing tax-exempt applications were discriminating against organizations based on their political viewpoint.
As some of my constitutional law professors like to say, "If the Constitution and the First Amendment stand for anything, it's the protection against viewpoint discrimination by the government trying to burden the advocacy of viewpoints it dislikes." As Justice Brennan stated in Texas v. Johnson, "If there is a bedrock principle underlying First Amendment, it’s that government may not suppress expression of an idea simply because society finds the idea itself offensive or disagreeable." The First Amendment's primary purpose has always been to protect political speech, even if and especially if it is critical of the government in power.
So what did the IRS do wrong that caused Lois Lerner, the head of the division that oversees tax-exempt groups, to apologize and acknowledge the "inappropriate" targeting of conservative political groups during the 2012 election? She revealed that the request for groups to disclose donors goes against IRS policies in most cases. White House spokesman Jay Carney also called the targeting inappropriate last Friday, but reminded reporters that the IRS is an independent agency.
Never mind silly things like facts and laws that clearly state the IRS is a bureau within the Treasury Department within the Executive Branch whose commissioner is appointed by the president with advice and consent from the Senate.
Last Friday, Lerner blamed low-level employees in Cincinnati, assured the American people there were no motivations of political bias, and shrugged off any suggestions that higher-level IRS officials knew of these policies. She reiterated by apologizing for the inappropriate actions. "That was absolutely incorrect, it was insensitive and it was inappropriate. That's not how we go about selecting cases for further review. The IRS would like to apologize for that."
Then, as the media investigated the matter and the legal representatives of these clients came public with IRS request letters from offices outside of Cincinnati, it was revealed that the truth was much different than what Ms. Lerner had revealed on Friday.
Despite the then-IRS commissioner telling members of Congress in March 2012 that the IRS was not targeting conservative groups for heightened scrutiny, ABC News and other outlets reported yesterday that the IRS's heightened scrutiny targeting conservative groups began in March 2010. By June 2011, the IRS had flagged more than 100 organizations applying for tax-exempt status. The IRS IG report also revealed that senior IRS officials in D.C. were aware of what was going on as early as August 4, 2011. The more news that breaks, the more likely it appears that the commissioner's testimony in March 2012 and even Lerner's remarks last Friday were misleading at best, and lies attempting cover-up at worst.
So how were groups selected for heightened scrutiny?
- If "tea party," "patriots," or "9/12 Project" were referenced in case file.
- If the group stated a purpose to educate the public via advocacy or lobbying to "make America a better place to live."
- If the group dealt with issues such as government spending, government debt, or taxes.
- If statements in the case file criticized how government was being run.
As more information comes to the surface, it is clear that past statements by IRS officials were wrong and those officials knew about this activity before they said they did.
Regardless of one's thoughts on the Tea Party or conservative groups, several things are clear. First, the IRS made mistakes that were wrong. IRS officials and President Obama have said as much. Second, officials have, for whatever reason, not told the complete truth when questioned on these matters over the past year and a half.
Finally, and most important, when arms of the government discriminate on the basis of political viewpoints and criticism of government, all citizens should be concerned and demand answers. Most disconcerting for President Obama should be statements like this one, from traditionally liberal Joe Klein of TIME magazine:
"The Internal Revenue Service’s targeting of conservative groups is outrageous. Those who did this should be fired immediately. That’s obvious. […] Yet again, we have an example of Democrats simply not managing the government properly and with discipline. This is just poisonous at a time of skepticism about the efficacy of government. And the president should know this: the absence of scandal is not the presence of competence. His unwillingness to concentrate — and I mean concentrate obsessively — on making sure that government is managed efficiently will be part of his legacy. Previous Presidents, including great ones like Roosevelt, have used the IRS against their enemies. But I don’t think Obama ever wanted to be on the same page as Richard Nixon. In this specific case, he now is."