[EL] BOLOs, TAGs, and Drums

[Joe La Rue]

Brad, Brad, Brad. Didn't you hear? The IRS *only *targeted progressive,
liberal groups. Or perhaps it is that *no *group was targeted; the IRS was
just doing its job. Regardless, there was *no *targeting of conservative
groups. The extra scrutiny applied to them, as well as the delays they
experienced, was all warranted. It doesn't matter what the IRS says. After
all, if we're going to revise history, and ignore the IRS's admissions
against interest (which is what some are doing), then we might as well do
it on a large scale. Go big or go home, right? So let's beat the drum
together that the IRS got it all wrong when it admitted it had improperly
targeted conservative groups.

My only question, I guess, is why is that a drum that anyone would want to
beat? Are some so politically driven that we cannot acknowledge that
something dreadfully wrong happened here, simply because it happened to the
other side? If the IRS can do it to conservative groups in the mid-2010s,
then they can do it to progressive groups if the White House (or even just
the IRS) becomes more conservative. And I continue to beat *my *drum and
say: it doesn't matter whether it was all conservative groups, or all
progressive ones, or a mixture of each that was targetted. What happened
was wrong. And I remain shocked that *that *is not something that we can
all agree on.

Joe


Joe
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On Wed, Aug 7, 2013 at 9:31 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  Where does this idea come from that they were evenly distributed? That's
> not what the IRS says.
>
>  *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 Mark Schmitt [
> schmitt.mark at gmail.com]
> *Sent:* Wednesday, August 07, 2013 10:54 PM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] BOLOs, TAGs, and Drums
>
>   This seems like a very new drum indeed. You seem to be saying that the
> very idea of a "BOLO" list, or what I've also heard called an "emerging
> issues" list, is illegitimate. I don't have the knowledge of IRS procedures
> that you do, but this is not an argument I've heard before.
>
>  It really doesn't seem complicated. Groups with the word "progressive" in
> their names or descriptions were getting some extra scrutiny based on
> long-established practice. That makes sense: The Progressive Policy
> Institute was established in 1991. Center for American Progress and the
> c(4) American Progress Action Fund in 2003. Progressive States Network,
> Progress Now and a bunch of "Progress [state]" c(4)s in 2005-2007,
> continuing to recent years. Those are the ones that jump to my mind, but
> there are others.  The IRS had a lot of time to absorb and consider those
> groups, and still their applications took many months. "Tea Party," as we
> know, was not a term that organizations were using before 2009-2010. And
> rather than the slow growth curve of "progressive" c(4)'s, a lot of groups
> using Tea Party and related but also new terms were created quite rapidly.
> Hence, it was an "emerging issue," or something to look out for, on which a
> formal protocol had not yet been established, but might need to be.
>
> What am I missing here? Both "progressive" and "Tea Party" groups were
> flagged for scrutiny, One term was old, the other was new. Both faced
> delays, questions and obstacles. Maybe those delays were themselves
> "wrong," as some have alleged, or maybe not, but they were evenly
> distributed. If one came from  one kind of list, and the other from another
> list, why do we care?
>
> Mark Schmitt
> Senior Fellow, The Roosevelt Institute<http://www.rooseveltinstitute.org/>
> 202/246-2350
> gchat or Skype: schmitt.mark
> twitter: mschmitt9
>
>
> On Wed, Aug 7, 2013 at 2:02 PM, <BZall at aol.com> wrote:
>
>> **
>> 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/November%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-e352-11e2-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
>> _____________________________________________________________
>> U.S. Treasury Circular 230 Notice
>>
>> Any U.S. federal tax advice included in this communication (including
>> any attachments) was not intended or written to be used, and cannot be
>> used, for the purpose of (i) avoiding U.S. federal tax-related penalties
>> or (ii) promoting, marketing or recommending to another party any
>> tax-related matter addressed herein.
>> _____________________________________________________________
>>
>>  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-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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