[EL] BOLOs, TAGs, and Drums

[Smith, Brad]

President Obama on at least 4 occasions publicly suggested that these tea party groups were illegally funded with foreign money. David Axelrod, well known as a very close aide, specifically made this charge on national television. Several other presidential surrogates and high ranking party officials echoed the claim, as did numerous activists allied with the Democratic Party. The President said publicly that these groups were "a problem for democracy" and "a threat to democracy."

Pretty much any congressional committee that could claim with a straight face some reason for authority over the matter held what can only be called show hearings to excoriate Citizens United and tea party groups. At least two Senators, Levin and Whitehouse, specifically and publicly said that these groups are guilty - not charged, not "may be guilty" or "may have violated the law" or even "appear to have violated the law," but were "guilty" of violating the law. Several Democratic Senators - they include Franken, Whitehouse, Merkel, Shaheen, Schumer, Bennett, Udall, and the Chair of the Senate Committee on Finance, which has primary responsibility for IRS matters, Senator Baucus - asked the IRS to launch investigations. Senate Majority Leader Reid compared the tea party to anarchists who, he claimed, "started World War I." Numerous prominent liberals upped the ante to include "terrorists."

The comparison to the first President Bush's comments - which were roundly condemned at  the time on exactly the grounds Marc suggests - are in the end inapt. Justin Verlander and I can both throw fastballs but few people really put our actions in the same league.

Nor can we ignore the broader context in which these accusations played out. The so-called DISCLOSE bill was introduced, with its primary sponsor specifically touting its intended "deterrent effect" on political speech. The Democratic House leader and the top Democrats on the Commerce Committee and the Communications and Technology Subcommittee have called on the FCC to require more disclosure of political ads than is required of any other type of ad, or than was ever required before. We know that numerous congressional Democrats have been pressuring the SEC to issue rules requiring more disclosure by publicly traded companies, even though such rules would alter longstanding Commission interpretations of materiality. Many of these communications have openly stated that the reason is unrelated to the functioning of securities markets, investor protection, or capital formation, but should be undertaken because the FEC - the agency designated with exclusive authority over campaign finance regulation - refuses to pass the rules these Democrats want, but the SEC and FCC can do so on a partisan basis.

We cannot ignore the fact that portions of the left have been engaging in regular harassment tactics of their political opponents.

We could go on and on here, but at some point it's not necessary - those who don't acknowledge what anyone who has spent 3 or more days in Washington knows simply don't want to acknowledge it.

Marc is quite right to suggest that targeting of any groups based on crude political criteria is wrong. But even if he is correct that "progressive" groups were also targeted - which I don't think the evidence shows and which remains contrary to the IRS's own story - it does not follow that what Marc admits was an "idiotic" policy just happened, or happened due to "secret motives" of IRS employees. The evidence strongly suggests that it happened in response to specific and powerful pressures placed on the IRS by leading members and officeholders of the Democratic party, who have specifically and vociferously been calling for this type of action by the IRS and other agencies, and have sought to use the power of government at numerous levels to silence their political opposition.

What I have said from day 1 of this scandal is that it is not about Lois Lerner, it is not about a trail that leads to some specific White House order, and it is not about rogue (or not so rogue) IRS bureaucrats. It is about a conscious and determined effort to attack political participation, focused on perceived political enemies of the President, using the power of government to harass and chill. That bureaucracies respond to such pressures is no secret to those of us who have served in the government (and I've served both as a political appointee at the top and as an entry-level civil service hire).


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: Legal Works of Marc Greidinger [mpoweru4 at gmail.com]
Sent: Sunday, August 11, 2013 9:04 AM
To: JBoppjr at aol.com; tpotter at capdale.com; joseph.e.larue at gmail.com; Smith, Brad
Cc: law-election at department-lists.uci.edu
Subject: RE: [EL] BOLOs, TAGs, and Drums

I am going to try to send along this rant again, now that the lists-serve is –allegedly—working properly.

Marc

From: Legal Works of Marc Greidinger [mailto:mpoweru4 at gmail.com]
Sent: Thursday, August 08, 2013 3:41 PM
To: 'JBoppjr at aol.com'; 'tpotter at capdale.com'; 'joseph.e.larue at gmail.com'; 'BSmith at law.capital.edu'
Cc: 'law-election at department-lists.uci.edu'
Subject: RE: [EL] BOLOs, TAGs, and Drums

As an Obama supporter, I do not recall the President ever asking me to  “get” members of Tea Party groups. What your discussion below essentially suggests is that Obama is at egregious fault because he publicly disagreed with Tea Party groups. Shame on him!

I wonder, would George H.W. Bush have also been necessarily to blame if the IRS targeted groups with “civil liberties” in their name? Did he sufficiently suggest that the government should “get” the ACLU when he called Dukakis a “card carrying member of the A-C-L-U” to be to blame for anything that government officials might subsequently do that might selectively disadvantage the ACLU? Wouldn’t it make a difference to you if it were subsequently discovered that the IRS was also investigating Sekulow’s right wing “ACLJ.” What if it turned out that, in addition, the IRS was going after all groups with the word “Christian” in their name? What if we found out thatthe ultimate reason for this targeting was that the IRS was selecting words to look for in organizational names randomly from those that begin with a “C?”

Your critique, I think, misses my point: I agree that targeting groups with “Tea Party” in their names was wrong, because the effect was to repress certain perspectives, just as targeting groups with “Occupy” or “Israel” in their names was. Virtually, any name picked would have this effect. And while it may be relevant to delve into the secret motives of IRS employees who picked these terms for purposes of figuring out whether to impose disciplinary consequences on them, that is very small potatoes: the significant policy problem here is that the IRS is screening applications using target words in organizational names, which is an idiotic thing to do.

But well after we all learned that left wing organizations were also listed – which Obama presumably did not want his supporters to “get” – we have this reluctance on the part of Darrell Issa and other Republicans to abandon the idea that all this was an affront from on high directed at the right. It seems to me like this persistence has far more to do with the impulse that causes some to cling too long to weird theories about stuff like Benghazi; Obama’s alleged Kenyan birth or muslim faith; massive Acorn directed voter authentication  fraud; or the theory that the World Trade was taken down with explosives as physics makes it impossible that airplanes could have destroyed these buildings.

Once you climb out far enough on limbs like that – and you develop a sufficient crowd of supporters cheering you on – it makes it harder to scootch backwards and climb down.




From: JBoppjr at aol.com<mailto:JBoppjr at aol.com> [mailto:JBoppjr at aol.com]
Sent: Thursday, August 08, 2013 2:33 PM
To: mpoweru4 at gmail.com<mailto:mpoweru4 at gmail.com>; tpotter at capdale.com<mailto:tpotter at capdale.com>; joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>; BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>
Cc: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] BOLOs, TAGs, and Drums

Regarding this:

The Republicans must be getting rather frustrated at this point, having invested so much time and effort into trying to connect the Obama Administration to a juicy scandal – hopefully against the right – c to be foiled by a mundane explanation at every turn

This whole scandal arose when Lois Lerner of the IRS announced that an Inspector General audit had revealed that the IRS had improperly targeted conservative groups for heightened scrutiny and had wrongly delayed their applications. We now know that one of the only two political appointees at the IRS, the General Counsel, was intimately involved.  And we know that President Obama spent years demonizing these groups and urging his supporters to get them. Obama set the goal for the bureaucracy and it is not surprising then it was carried out. And now he is protecting them by declaring this a "phoney" scandal and by his minions slow walking and stonewalling any investigations. There does not have to be a memo from Obama to the IRS telling them to do all this and I am sure there is no such memo. He just needs to set the goal for this to happen and for that he is to be condemned.

What amazes me about these simple indisputable facts is the response of Marc and others to just deny them and defend what happened.  A government that will do this to conservatives - who you hate and want to get -- is just as likely to do it to liberals.  Have you already forgot Nixon's enemies list and his instructions to the IRS to get them?  So if nothing else about this concerns you, simple self preservation should. Jim Bopp

In a message dated 8/8/2013 12:25:59 P.M. Eastern Daylight Time, mpoweru4 at gmail.com<mailto:mpoweru4 at gmail.com> writes:
Several years ago, an organization beginning to put together local farmers markets I was on the Board of applied for 501(c)(3) status. It had been specifically encouraged to do this under a Department of Agriculture program designed to promote farmers markets as a boon to local farmers, local economies, and nutrition. The IRS apparently had not gotten the memo from the Department of  Agriculture, and papered the organization to death with hundreds of written interrogatories and requests for production under tight deadlines. We found out that the IRS was also doing this to many other similar farmers market organizations, apparently out of some unknown IRS official’s misguided belief that Farmers’ Market organizations were inherently businesses posing as non-profits.

The IRS’s unofficial attitude toward farmers markets in general caused the Farmer’s Market organization I was involved with to abandon its effort to organize under 501(c)(3), even though, as far as I could tell, the organization was of the kind that 501(c)(3) status was designed to help, and was doing things consistent with public policies promoted by the Department of Agriculture.

These BOLOs and “IRSgate” have always impressed me as similar stupidity to the above, not conspiracy. The Republicans must be getting rather frustrated at this point, having invested so much time and effort into trying to connect the Obama Administration to a juicy scandal – hopefully against the right – c to be foiled by a mundane explanation at every turn. But even in the absence of conspiracy, if we are going to have (c)(4)s involved in issue advocacy, it should not matter what type of organizations the “key words” screening pulls out: any such screening is likely to chill, and will disadvantage someone’s voice which is likely representing an interest, or competing with someone elses. If we are going to maintain the advantages organizations benefit from under (c)(4) there should be no such screening. A more interesting question  is whether in general it makes sense anymore for issue advocacy organizations to enjoy the advantages available to them under (c)(4), and whether issue advocacy orgs posing as (c)(3)s should continue to benefit from tax advantages with so little critical IRS scrutiny.



Marc Greidinger
Attorney at Law
https://www.facebook.com/GreidingerLegalWorks?ref=br_tf
(703) 323-4661

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Trevor Potter
Sent: Thursday, August 08, 2013 10:40 AM
To: Joe La Rue; Smith, Brad
Cc: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] BOLOs, TAGs, and Drums

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> [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<mailto: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
___________________
Joseph E. La Rue
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On Wed, Aug 7, 2013 at 9:31 PM, Smith, Brad <BSmith at law.capital.edu<mailto: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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Mark Schmitt [schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>]
Sent: Wednesday, August 07, 2013 10:54 PM
To: law-election at department-lists.uci.edu<mailto: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<mailto: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<tel:301-231-6943> (direct dial)
bzall at aol.com<mailto: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<mailto: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<tel:703-993-4191> (office)
e-mail:  mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>
web:     http://elections.gmu.edu<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> [mailto: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<mailto: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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Michael P McDonald [mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>]
Sent: Wednesday, August 07, 2013 11:43 AM
To: law-election at department-lists.uci.edu<mailto: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<tel:703-993-4191> (office)
e-mail:  mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>
web:     http://elections.gmu.edu<http://elections.gmu.edu/>
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto: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<mailto: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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Trevor Potter [tpotter at capdale.com<mailto:tpotter at capdale.com>]
Sent: Wednesday, August 07, 2013 11:04 AM
To: Jason Torchinsky; law-election at department-lists.uci.edu<mailto: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> [mailto: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<mailto: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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