[EL] GOP: IRS targeted conservatives more than liberals

[John Pomeranz]

This report is a prime example of why I am frustrated with the way Congress has handled its inquiry into the mistakes the IRS made in how it handled applications for recognition of the tax-exempt status of conservative and other groups.  What is needed is a fair analysis of what occurred, why it occurred, how to remedy the harm that was caused, and how to prevent such harm in the future.  Instead, partisans on both sides are too quick to accept assertions uncritically, selectively cite facts, and to cast everything that comes to light in ways that serve a political agenda.

Many conservatives, who are rightly outraged at inappropriate IRS selection criteria that led to heightened scrutiny of groups simply because they had conservative-sounding names, are reluctant to consider the possibility of more benign reasons for IRS mistakes (e.g. vague and unenforceable legal standards, inadequate resources, entrenched reticence to address controversial legal issues, institutional difficulty attracting good employees and disciplining bad ones, etc.).  Many liberals, perhaps happy that tax-exempt groups they find loathsome were victimized by the IRS or perhaps just responding in kind to the apparent conservative witch hunt prompted by the IRS mistakes, fail to acknowledge the mistakes the IRS did make and the harm those mistakes caused.

This most recent "analysis" appears to have simply counted up the number of questions asked by IRS determinations staff and the numbers of applications approved or still pending.  The result is an ominous suggestion of political bias.  Yet it would have been nice if a more rigorous analysis had been done before a breathless press release was issued.  For example, did the authors of this report consider the substance of the IRS applications submitted to determine whether the scrutiny was warranted?  It may be that the groups subject to greater scrutiny and delay were also those that indicated they were planning to engage in activities that that would be inappropriate for the tax-exempt status they sought under announced interpretations of the relevant law.  Did the authors look at the timing of the applications to determine how that timing mapped against the timeline of the IRS errors as identified in the initial TIGTA report and subsequent inquiries?  Some of the liberal groups may just have gotten lucky by filing their applications later in the process, when the efforts to clean up the mess were finally having some effect.

If Congress really wants to address the IRS fiasco instead of just providing fodder for talk radio and the blogosphere, it will arrange for an independent, bi-partisan (it's folly to hope that it would be nonpartisan) inquiry, informed by knowledgeable exempt organization law experts, that is given a period of some months to issue an analysis and set of recommendations.  Although doing so might deny some the vengeance they seek, such an inquiry would likely be more fruitful if Congress were to provide at least some level of immunity to IRS staff and former staff to enable them to speak frankly to investigators about what took place (although investigators should, of course, consider such statements with a reasonable degree of skepticism).

I'm CCing the Ways & Means staffers listed on the linked-to announcement of the report in hopes of shedding a bit more light and a bit less heat in this already-too-politicized inquiry into the IRS fiasco.


John Pomeranz
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M Street, NW, Suite 600
Washington, DC  20036
p: 202.328.3500
f: 202.328.6918
e: jpomeranz at harmoncurran.com



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, July 31, 2013 11:16 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 7/31/13

"GOP: IRS targeted conservatives more than liberals"<http://electionlawblog.org/?p=53725>
Posted on July 30, 2013 3:17 pm<http://electionlawblog.org/?p=53725> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.ajc.com/news/ap/political/gop-irs-targeted-conservatives-more-than-liberals/nY8Kj/>: "Conservative groups seeking tax-exempt status were more closely scrutinized by the Internal Revenue Service than their progressive counterparts, according to a report <http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=344485> Tuesday by House Republican investigators."






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