[EL] Lerner in her own words - "everyone" "screaming"

Wed Aug 7 09:10:03 PDT 2013

Without getting into the question whether there was improper IRS conduct in response to political pressure, isn't it obvious that there was something she and others at the IRS could do prior to reviewing the 990s, namely slow-walking the 501(c)(4) letters?

Mark Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------
From: John Pomeranz <jpomeranz at harmoncurran.com>
Date: 08/07/2013 8:51 AM (GMT-08:00)
To: Michael P McDonald <mmcdon at gmu.edu>,law-election at department-lists.uci.edu
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"

It's worth noting here that, Lerner is explicitly saying on the video that she is NOT bowing to public pressure, whether coming from truly populist grassroots concern or astroturf befuddled dupes.

She says:

"The IRS laws are not set up to address the problem.  501(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 501(c)(4) activity, um, which is social welfare.  So everybody screaming at us 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 a political or not.  So, I can't so anything right now."

Sure, she engages in hyperbole in saying "everyone" and "everybody."  Yes, her description of the Citizens United decision echoes that of the many critics of that decision, which include President Obama and lots of others (but not, I note for the record, me).  But ultimately, in this one clip from what is clearly a longer seminar that the Breitbart site selected as (presumably) the most damning, we have a senior federal agency official saying:  "We cannot and will not join in the witch hunt many are seeking."  Would that her accusers (including the vile commenters on the Breitbart site) shared a similar view.

John Pomeranz
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M Street, NW, Suite 600
Washington, DC  20036
p: 202.328.3500
f: 202.328.6918
e: jpomeranz at harmoncurran.com

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael P McDonald
Sent: Wednesday, August 07, 2013 11:44 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"

I remained silent with the "I told you so" when a litany of media reports finally came out showing how liberal organizations were flagged and treated the same as conservative organizations. But this is the story that will not die so here we go...

Where this logic fails is that the IRS included liberal groups in their treatment such as those advocating for the Affordable Care Act. When did the president or Democratic members of congress ever indicate that they wanted the IRS to go after groups advocating for Obama's signature legislative accomplishment? Or was that Republican members of Congress sounding those alarms? Perhaps when Lerner says "everyone" she means *everyone* and not just the president and his congressional allies. And if everyone was clamoring for action against their political opponents, how could any action taken by the IRS not be alleged as singling out a political opponent of someone?

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Wednesday, August 07, 2013 11:17 AM
To: Trevor Potter; Jason Torchinsky; law-election at department-lists.uci.edu
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"

And that is, to me, what the scandal has always been about. It's not that there was some White House order (although that wouldn't overly shock me). It's that the White House and the President publicly and repeatedly sounded the "alarm," and the need to get after these groups. It's that members of Congress repeatedly wrote to the IRS to demand that it take action or inquire  why it hadn't (and we know what such an inquiry means). It is that Democrats held show hearings all over Capitol Hill, wherever any committee could with any remote legitimacy claim some jurisdiction, to excoriate these groups. It is that Democrats publicly and private pressured the SEC and the FCC, as well as the IRS, to take action because the FEC would not and Congress was unable to pass DISCLOSE.

Of course the IRS responds to such posturing, inquiries, and vilification. That is the problem. And it continues, as Sen. Whitehouse held a hearing this spring openly accusing groups of violating the law, with no evidence; as Senator Levin promised to "investigate" these conservative organizations; as Senator Durbin sent out mass letters yesterday demanding to know if various persons and groups had in any way funded ALEC.

There was what reformers would call "an astroturf" campaign, headed up by prominent Democratic officeholders and aides, to drum an aura of crisis about the political participation of their political opponents, and then to demand that the huge federal bureaucracy step in to "do something" about it, in light of the fact that Congress could not muster the votes.

That is the problem, and it is exactly what we've been warning about for years would be one of the many problems with campaign finance regulation.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Trevor Potter [tpotter at capdale.com]
Sent: Wednesday, August 07, 2013 11:04 AM
To: Jason Torchinsky; law-election at department-lists.uci.edu
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"
Jason

I know you are relying on a Breitbart piece, and it has an obvious point of view. However, even that piece does not say that there was any pressure from the "White House" on the IRS, and Breitbart is fair enough to note that there was a great deal of press coverage and editorials in 2010 about new 501 c4s which appeared to be doing  nothing but huge amounts election activity in 2010. As the article states:

"TIGTA's report contains a few key redactions which conceal precisely how the scrutiny of Tea Party groups began. Reading between the lines it seems media attention played a role. Plans by a Tea Party group to create a new 501(c)(4) were featured in stories at the NY Times and NPR just a couple weeks after Obama's statements about Citizens United. These stories apparently caught the attention of the IRS which regularly monitors news stories to be aware of developing issues."

Thus, the "everyone" wanting the IRS to "do something" in context appears to refer to the quite public and common outrage reported on in the press that essentially political entities were using 501 c 4 status to avoid disclosure of their donors which would be required under election law.

Trevor Potter

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jason Torchinsky
Sent: Wednesday, August 07, 2013 10:47 AM
To: law-election at department-lists.uci.edu
Subject: [EL] Lerner in her own words - "everyone" "screaming"

http://www.breitbart.com/InstaBlog/2013/08/06/Lois-Lerner-Discusses-Political-Pressure-on-the-IRS-in-2010

In case anyone missed this, here's Lois Lerner in her own words from 2010 explaining that "everyone" wanted the IRS to "do something."

This video according to the report was taken in the fall of 2010.

Implications of this?  I thought the IRS and the White House have maintained there was no pressure on the IRS.

-          Jason Torchinsky

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