[EL] BOLOs, TAGs, and Drums
BZall at aol.com
BZall at aol.com
Wed Aug 7 11:02:09 PDT 2013
Sigh, not to continue Prof. McDonald's "drum" analogy further, but there
seems to be a continuing error of conflation in these discussions, both on
the Hill and in this thread. If Glenn Kessler ("The FactChecker" from Jeff
Bezos's newspaper) can figure this one out, so can those looking for the
difference between treatments:
"Meanwhile, Democrats have highlighted information that they say undercuts
the thrust of the Inspector general’s report. While that report focuses on
scrutiny of “tea party” and related groups — which had been placed on “be
on the lookout” (BOLO) lists — Democrats released _documents_
(http://democrats.waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/No
vember%202010%20BOLO%20IRS0000001349-IRS0000001364.pdf) showing that the
term “progressive” had been part of a “TAG [touch-and-go] Historical”
list."
http://www.washingtonpost.com/blogs/fact-checker/post/explainer-sorting-through-charges-and-countercharges-in-the-irs-probe/2013/07/02/1cc2f520-e352-1
1e2-aef3-339619eab080_blog.html
There is a difference between a BOLO list and a TAG list ("Touch and Go").
See, e.g., http://www.irs.gov/irm/part7/irm_07-020-006.html, explaining
Touch and Go as a standard processing term in many highly-problematic areas.
(Note: the Internal Revenue Manual is the internal description of standard
procedures and can be relied on in certain tax or legal proceedings.) Real
TAG analyses are generally reserved for abusive transactions (many of which
involve exempt organizations) and have a very specific chain of command
and authority, plus review. Potential terrorism issues, for example, are on
TAG reviews. You can imagine the reviews those generate. "Compliance"
project reviews are generally not worthy of the full TAG panoply. IRM
7.20.6.1.2.1.
To the extent we even know what they are/were, BOLOs, on the other hand,
are a new and unreported (and apparently badly supervised) version of TAG
lists that raised many of these issues. Like TAGs, BOLOs use key words in the
database to identify possible transactions, but the differences are in the
structure, supervision, and probably the choice of terms as being
recognized for a particular definition of what the problem is. Who generated the
terms? We don't know. Who reviewed the terms? We don't know. Who reviewed the
selections based on those terms? We don't know. What was the process used
once a selection was made? We don't know. Etc. What we do know is that
everyone passed the buck or said they didn't know.
In other words, TAG reviews are what we expected the IRS to do if there had
really been a problem; BOLOs are not. BOLOs are, for want of a better
description, rogue TAGs, and no one wanted to grab that leash to bring them
under control. THAT is the scandal; not that groups' applications were
scrutinized, but that the process was overwhelmingly one-sided and unrestrained.
There is no IRM entry for BOLO lists, nor will there be, despite Cong.
McDermott's entreaties.
http://www.realclearpolitics.com/video/2013/06/27/rep_mcdermott_irs_should_keep_bolo_lists.html. Having seen them in action, I
would be surprised if EO or any other part of IRS made the term "BOLO list" a
routine part of the IRM in the future.
As I understood the more informed (or less utterly-clueless) of the
discussions, the liberal groups were mostly on TAGs; the conservatives (and a few
unlucky progressive exceptions) were on BOLOs. Note that in the attachments
to the House Dems' complaint, pages 1-9 refer to TAGs; only after P. 10 is
there a reference to BOLOs, but all the listings cited say they are for
BOLOs.
http://democrats.waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/August%202010%20IRS0000002503.pdf The same is true through
the next few "BOLO" listings; it's really TAGs and BOLOs without
discrimination.
Both inclusions were undoubtedly mistakes, but one was quickly resolved
through a quick look at the TAG rules; the other was not and it grew and grew
and grew.
Doesn't mean Prof. McDonald is wrong, and he'll undoubtedly explain why his
drum still thrums alone, but it does add another beat to the mix.
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
bzall at aol.com
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In a message dated 8/7/2013 1:20:46 P.M. Eastern Daylight Time,
mmcdon at gmu.edu writes:
The IRS issued BOLOs that used the keyword search approach to identify
liberal groups, just as they did conservative groups. Unless, you mean to say
that liberal and conservative groups were flagged as a general course of
business, in which case I am inclined to agree with you. I say "inclined"
since there is an outstanding question as to why more conservative groups were
flagged than liberal (something I am sure someone will say to beat their
drum). A likely non-nefarious explanation is that a greater number of
conservative organizations filed for status, which is my belief until
contradicting evidence comes to light.
The evidence that continues to come to light is entirely consistent with
my initial postings on this matter. I'm in the fortunate position of only
ever needing one drum to beat since I've never had a drum taken away.
============
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
-----Original Message-----
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 12:45 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"
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
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-Politica
l-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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