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

[Justin Levitt]

But the nature of the scandal actually does matter.  Among other things, 
getting the nature of the scandal right is the necessary predicate for a 
properly tailored response.

Improper scrutiny based on impermissible shortcuts, like using the names 
of organizations or other buzzwords to direct scrutiny, is bad.  
Improper scrutiny based on the desire to please executive or legislative 
supervisors is also bad -- but differently so, and should indicate a 
different solution.  Improper scrutiny based on the pursuit of tribal 
partisan advantage is _also_ bad -- and also differently so (with 
different solutions).

And finally, as I've written <http://ssrn.com/abstract=2239491>, 
confusing one of these bad acts for the other is _itself_ bad.  In the 
normal course, if an official who is supposed to avoid action purely for 
partisan gain is determined to take action purely for partisan gain, 
there are few legal sanctions that are practically enforceable.  One of 
the few things that effectively keeps civil servants from acting behind 
the scenes in ways motivated by purely partisan gain is moral sanction, 
and the firm norm that develops against action purely for the sake of 
partisanship.  That norm is undermined by failing to punish 
impermissible behavior motivated by partisan gain -- but it is _also_ 
undermined by punishing behavior that is _not_ motivated by partisan 
gain as if it were so motivated.

Or, more simply: yelling at civil servants for behaving in purely 
partisan ways even when they're not behaving in purely partisan ways 
cuts down the incentive to refrain from acting in purely partisan ways.  
If they're going to be excoriated either way, why bother refraining?

To be clear, this principle applies independent of the current IRS 
brouhaha.  (I also think that FEC commissioners are criticized far too 
often for acting in purely partisan fashion, when there are usually far 
more compelling explanations for their behavior -- and I think that the 
misplaced critique actually undermines restraints on purely partisan 
activity.)  It's just one more reason why the nature of the scandal 
matters -- so that the critique is focused on the actual misbehavior.

Justin

-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 8/7/2013 9:45 AM, Smith, Brad wrote:
> I'm surprised that Michael keeps thumping this drum since the Inspector General, and the IRS itself, have said quite clearly that conservative groups were targeted. The fact that some liberal groups were also snared, either in the criteria used to scrutinize conservative groups, or in the general course of business, really doesn't change that, and numerous analyses the numbers have verified the impact.
>
> But having said that, it doesn't matter. Even if Michael were correct, that would change only the nature, and not the fact, of the scandal. And that, again, represents the problem.
>
> 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 Michael P McDonald [mmcdon at gmu.edu]
> Sent: Wednesday, August 07, 2013 11:43 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
>
>

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