The Washington Post is credited with exposing the Watergate conspiracy and helping to bring down a corrupt presidency. Forty years later, the Post played a role in the corruption of the Internal Revenue Service, to the benefit of an incumbent president in a bitter and close re-election.
A staff memo released earlier this week by the House Oversight and Government Reform Committee provides an "interim update" on the investigation of the IRS scandal. A central finding: "Media attention caused the IRS to treat conservative-oriented tax-exempt applications differently" from liberal or progressive ones.
The memo presents no evidence that the White House directly ordered the IRS to crack down on political opponents. Instead, it is consistent with the theory, described here in May, that IRS personnel responded to "dog whistles" (in Peggy Noonan's metaphor) in public statements from the president and his supporters.
In a passage we've annotated with links, the memo describes the media "drumbeat" in early 2010, when the IRS first began turning its attention to the Tea Party:
Washington Post columnists accused Tea Party groups of "smolder[ing] with anger" [Colbert King] and practicing a brand of patriotism reminiscent of the Ku Klux Klan [Courtland Milloy]. Another Post columnist opined in late March 2010 that Tea Party rhetoric "is calibrated not to inform but to incite" [Eugene Robinson]. In April 2010, Reuters tied the Tea Party movement to "America's season of rage and fear."
Contrary to initial claims that the Tea Party targeting was a product of rogue employees in the IRS's Cincinnati office, the Oversight Committee memo shows that as early as February 2010, Cincinnati employees were flagging Tea Party applications for Washington's attention, and their stated motive was media interest:
The potential for media attention continued to be a concern for IRS officials once Washington received additional sample cases in late March 2010. Upon receiving the cases in Washington, an IRS employee reviewing the application reiterated that "[t]he concern is potential for media attention." Around the same time that the Washington Post was running columns critical of the Tea Party, she added that "[t]he Tea Party movement is covered in the Post almost daily. I expect to see more applications."
"Other IRS employees also monitored news about conservative-leaning groups applying for tax exemption," according to the memo:
In March 2012, a line attorney in the IRS Chief Counsel's office circulated a New York Times editorial entitled "The I.R.S. Does Its Job" to three colleagues. The first sentence of the editorial read: "Taxpayers should be encouraged by complaints from Tea Party chapters applying for nonprofit tax status at being asked by the Internal Revenue Service to prove they are 'social welfare' organizations and not the political activities they so obviously are."
In May we faulted the Times for "cheering on the IRS" as it abused its power. Now we have confirmation that the IRS got the message.
The memo presents evidence that the IRS used an ideologically biased definition of what constitutes a "social welfare" organization, citing this testimony from a Cincinnati IRS employee (which we quote verbatim from the memo):
Normal (c)(4) cases we must develop the concept of social welfare, such as the community newspapers, or the poor, that types. These [Tea Party] organizations mostly concentrate their activities on the limiting government, limiting government role, or reducing government size, or paying less tax. I think it[']s different from the other social welfare organizations which are (c)(4).
The reference is to Section 501(c)(4) of the Internal Revenue Code, which defines a type of nonprofit organization whose operations are tax-exempt but whose contributions are not.
The memo also notes striking similarities between President Obama's and Lois Lerner's rhetoric in the wake of Justice Anthony Kennedy's landmark January 2010 First Amendment ruling, Citizens United v. FEC. Here's Obama in an August 2010 speech:
Right now all around this country there are groups with harmless-sounding names like Americans for Prosperity, who are running millions of dollars of ads against Democratic candidates all across the country. And they don't have to say who exactly the Americans for Prosperity are. You don't know if it's a foreign-controlled corporation. You don't know if it's a big oil company, or a big bank. You don't know if it's a insurance [sic] company that wants to see some of the provisions in health reform repealed because it's good for their bottom line, even if it's not good for the American people.
Note that Obama did not even attempt to conceal the partisan and ideological nature of his concern. His worry was about substance, not process--about "ads against Democratic candidates" and in support of industries he chose to demonize.
Now, here's Lerner in an October 2010 speech at Duke University:
What happened last year [sic; actually earlier the same year] was the Supreme Court--the law keeps getting chipped away in the federal election arena. The Supreme Court dealt a huge blow, overturning a 100-year-old precedent that said basically corporations couldn't give directly to political campaigns. And everyone is up in arms because they don't like it. The Federal Election Commission can't do anything about it. They want the IRS to fix the problem. The IRS laws are not set up to fix the problem. (c)(4)s can do straight political activity. They can go out and pay for an ad that says, "Vote for Joe Blow." That's something they can do as long as their primary activity is their (c)(4) activity, which is social welfare.
So everybody is screaming at us right now: "Fix it now before the election. Can't you see how much these people are spending?" I won't know until I look at their 990s next year whether they have done more than their primary activity as political or not. So I can't do anything right now.
Lerner's description of the Citizens United decision is grossly inaccurate. It did not overturn any century-old precedent, but a pair of more recent ones, the older of which, Austin v. Michigan Chamber of Commerce, was decided in 1990. And it left standing the ban on corporate donations to federal campaigns. What it protects is independent speech about campaigns. These errors are telling, because they track closely with Obama's false description of Citizens United in his 2010 State of the Union address:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests--including foreign corporations--to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.
Perhaps even more telling is Lerner's lament that "everybody is screaming at us right now." Not only did she hear the dog whistle, but she apparently was unable to identify it as emanating from a partisan source. Obama, congressional Democrats and the liberal media were the only voices Lerner was capable of hearing.
Obama backers seeking to minimize the IRS scandal frequently claim that the agency scrutinized progressive groups, too. The Oversight Committee memo powerfully rebuts this claim with a specific example:
From 2004 to 2008, the IRS evaluated and approved five applications from affiliates of the progressive-oriented group, Emerge America, which describes itself as "the premier training program for Democratic women." According to one IRS employee, some of these five applications were approved by Cincinnati employees in a "matter of hours."
Later, in 2010, the IRS Chief Counsel's office evaluated another progressive application, described by an IRS employee as "a (c)(4) that was going to be training women to become candidates" for the Democratic Party. The same employee testified that at the time, the IRS had "two or three other applications" from affiliated groups. However, there are several distinctions between the manner in which the IRS evaluated Emerge America applications and the manner in which the IRS evaluated conservative-oriented applications.
According to testimony from an IRS attorney in the Chief Counsel's office, tax law specialists in EO [Exempt Organizations] Technical had recommended denying the Emerge application before the case was sent to the IRS Chief Counsel's office in 2010. The Chief Counsel's office agreed with the recommended denial, and the application was subsequently denied in early 2011. Conversely, three tax law specialists who worked a conservative (c)(4) application in 2011 all separately recommended approving the group for exempt status. Despite the proposed approval from three different IRS employees, the case was nonetheless sent to the IRS Chief Counsel's office, which asked the tax law specialists to gather additional information about the group's activities during the 2010 election cycle. To the best of the Committee's information, this application is still pending.
From this account, it appears that the IRS was more skeptical of Emerge, the left-wing group, in 2010-11 than it had been during the Bush administration. To that extent it runs counter to the IRS scandal narrative.
But only to that extent. The Emerge application was disapproved on the professional recommendation of IRS legal experts. The conservative groups' applications were delayed despite the professional recommendation of those same experts. If this example is typical, the only progressive groups whose applications were denied were those that should have been, while conservative groups that should have been approved instead were delayed until the 2012 election and beyond.
So it seems that the IRS came up with a way to "fix the problem," as Lerner put it, in time for 2012, even if not 2010. In this context, consider the following Sept. 9 report from Investor's Business Daily:
Top officials with both the IRS and Justice Department--including the IRS commissioner and attorney general--met in Washington with several dozen prominent black church ministers representing millions of voters to brief them on how to get their flocks out to vote without breaking federal tax laws.
The "summit" on energizing the black vote in houses of worship was hosted by the Democrat-controlled Congressional Black Caucus inside the U.S. Capitol on May 30, 2012.
The day before the special IRS training session, then-Black Caucus Chairman Rep. Emanuel Cleaver predicted Obama would get 95% of the African-American vote--but only if black pastors "encourage" them to get to the polls. (He ended up getting over 93% of the black vote.)
The CBC summit is not mentioned in the Oversight Committee memo, and it isn't clear if it is part of the investigation. Considered in isolation, it isn't even objectionable. There's nothing wrong with a law-enforcement agency advising citizens on how to comply with the law. But the pattern of favoritism--with the IRS taking a helpful attitude toward supporters of the president and an adversarial one toward opponents--is cause for alarm and outrage.
As we have argued before, Barack Obama's re-election deserves to be listed with an asterisk in the record books. He is the political equivalent of an athlete found to have used illicit performance-enhancing drugs. Whether he would have won in 2012 absent the IRS's political corruption is unknowable. We know only that he did win with the help of a corrupt IRS. And if indeed the election was stolen, many in the media were complicit in its theft.
