[EL] BOLOs, TAGs, and Drums
Trevor Potter
tpotter at capdale.com
Thu Aug 8 07:39:47 PDT 2013
The scandal was supposed to be that IRS employees targeted conservative
groups because of their political beliefs. That is in fact a scandalous
accusation for what is supposed to be a non-partisan agency strictly
above politics and which needs the trust of the American people to
function.
Joe LaRue says:
"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."
I disagree. If it turns out that the IRS challenged both progressive and
conservative groups, delayed their c4 applications, put them in dead-end
piles, audited them after complaints were received, and general poorly
managed their status, then we have a completely different issue. If this
turns out to be the case-whether through "BOLOS" or "emergent
issues"-then the question becomes why did this happen. Was it from
mismanagement, understaffing, poor training or leadership, or an
inability of the IRS to address the status of highly political c4s under
current rules and in the midst of a partisan battleground where members
of Congress of both parties are regularly attacking the agency for
favoring the other party? In other words, have they just frozen in the
midst of battle? That would be a scandal of maladministration, not the
political vendetta that has been alleged. Because, after all, the IRS
does HAVE to determine whether groups qualify for 501 c 4 status, and
then whether they are in compliance with c 4 standards of conduct-that
is the agencies job, whether the groups are progressive or conservative.
Trevor Potter
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe
La Rue
Sent: Thursday, August 08, 2013 10:15 AM
To: Smith, Brad
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] BOLOs, TAGs, and Drums
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 <tel:202%2F246-2350>
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.ho
use.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_shou
ld_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.hou
se.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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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-Poli
tical-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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