[EL] News Analysis: Substantial Minority of Scrutinized EOs Were Not Conservative

Fri Jun 7 09:29:48 PDT 2013

Let's ask a different question. Even if we lived in a world where the IRS's sorting mechanisms for extended review were entirely appropriate and lacked any indicia of partisan bias, is not the scope of the IRS's questionnaires itself sufficiently troubling? Especially where they must be answered under oath, and where the Service makes clear that answers will be made public?

Quite aside from the enormous range of questions and demanded documentation (I assume we're all familiar with the general outline of these questionnaires), there are some requests which are simply bizarre. http://abcnews.go.com/blogs/politics/2013/05/weirdest-irs-questions-for-the-tea-party-views-donors-and-etymology/

My personal favorite: "'Please explain in detail the derivation of your organization's name.' (in a letter to the Ohio-based 1851 Center for  Constitutional Law)."

Isn't this approach in itself chilling (a term I use in its legal sense)? And wouldn't that be an independent cause for concern, even if groups across the political spectrum had been treated equally?

The need to limit the discretion of IRS employees should be common ground here, at both ends of the process. To quote Bob Bauer: "Th[e] larger problem is a reform, whether left to Congress or to the IRS, or achieved through some collaboration of the two, that requires the tax authorities to examine the programs and activities of tax-exempts for evidence of political intent." http://www.moresoftmoneyhardlaw.com/2013/06/bright-lines-project-defense/

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael P McDonald
Sent: Friday, June 07, 2013 11:45 AM
To: law-election at uci.edu
Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized EOs Were Not Conservative

My perspective on this comes from an academic who has worked with what is now popularly called "big data." It is human nature when trying to make sense of big data to use keywords to classify data. Was it stupid for a government agency to use politically charged keywords to classify organizations when faced with a deluge of applications that overwhelmed their capacity to handle them? Of course it was. But stupidity does not necessarily mean that the keywords were not effective at achieving the goal of correctly classifying organizations that required heightened scrutiny. Is it possible that more neutral selection criteria would have had the same result? The IRS and IG appear to come to the conclusion that it would have. The academic in me wants more data before I come to my own judgment.

As for what happened to conservative organizations once they were flagged, that is troubling. Unfortunately, the initial reporting on this affair was atrocious. Reporters ran to the conservative organizations to find out how they were mistreated, without looking at the entire scope of the organizations that were flagged. As a result, we have claims made at the start of the affair that haven't held up with additional investigation (regrettably, little of it by the main stream media), such as only conservative organizations being flagged when they were not, only conservative organizations receiving what they determined was a intrusive questionnaire when they were not, and finding that liberal organizations were denied their applications while conservative groups were not. For the specific question about unreasonable delays, I'd again like more data, to know comparable wait times and to know if there are reasonable explanations for delay. So far, the data brought to light after the initial frenzy has come down in favor of the IRS and IG position that no political motivations were present. But, despite the mischaracterization of my position, I still have an open mind that more information may reveal that inappropriate politically motivated activity occurred at the IRS. There is certainly smoke, but I've seen no evidence of fire yet.

If I were to take a broader perspective on differing interpretation of these events, I'm not certain that this is a left/right divide as much as an lawyer/academic divide. Lawyers are trained to speak in absolutes, to push their position and dismiss alternative explanations; while academics are trained to look at all reasonable explanations before coming to a conclusion, and often find mixed motives when they do. This is what tends to make academics terrible expert witnesses since there is a clash of cultures in the courtroom, an arena that favors the lawyerly trained. I'm not saying that one approach is better than another, I'm trying to point out what I think is a philosophical difference that explains why I have a different approach to this affair than others on the list.

============
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 Joe La Rue
Sent: Friday, June 07, 2013 10:08 AM
To: Mark Schmitt
Cc: law-election at uci.edu
Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized EOs Were Not Conservative

It is somewhat surprising to see intelligent people attempt to defend the indefensible and, in doing so, deny the veracity of what IRS officials have already admitted. It reminds me of the old proverb that there is no one so blind as the one who refuses to see. The thinking seems to go: "let's find a (c)(3) or two that engaged in inappropriate political activity; that will negate the IRS's admission of targeting and make it all acceptable." The problem, of course, is that it's not acceptable, no matter how it is spun. It would not be acceptable if the IRS targeted groups with the words "Occupy" or "Progressive" in their titles. And it is not acceptable here, either, no matter how loudly some on this List Serve protest that it is.

Further, with regard to some of the organizations engaging in extensive electoral activity, that is not illegal (so long as they are (c)(4)s, and so long as the activity did not cross the threshold amount). Yet, that is the accusation that gets tossed about in an attempt to justify the unjustifiable.

Joe

Joe
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On Fri, Jun 7, 2013 at 6:46 AM, Mark Schmitt <schmitt.mark at gmail.com> wrote:
Two other things we know:

-- Of the 298 groups "pulled for more scrutiny", less than one third had
the words "Tea Party" or "9/12" or "patriot." We don't know why the
others were pulled or what their names were. Sullivan's piece is an
attempt to fit the list of approved groups (122 conservative, 48 liberal
or centrist, e.g. "No Labels") with the numbers from the TIGTA report,
but it is necessarily incomplete. But given the number of approved
groups that were conservative, we have to imagine that there are lots of
liberal groups left behind, in addition to those that we know were
turned down. And the words are far from the only reason an application
was pulled for extra scrutiny.

-- Every single time a reporter has looked at the actual activities of
these organizations, including those that testified, as shown on their
web sites, they have seen extensive electoral activity, including
endorsements and calls to action. That even goes for Tea Party
organizations that got (c)(3) status!:

http://www.politico.com/story/2013/06/irs-scrutiny-politics-92254.html
http://tv.msnbc.com/2013/05/17/some-tea-party-groups-probed-by-irs-had-close-gop-ties/

Perhaps "tea party" was a good heuristic after all, for applications
that needed some extra scrutiny regarding their proposed
political/electoral activity.

------ Original Message ------
From: "Smith, Brad" <BSmith at law.capital.edu>
To: "law-election at UCI.edu" <law-election at uci.edu>
Sent: 6/7/2013 3:09:22 AM
Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized EOs
Were Not Conservative
>I think Michael's characterization of what has been admitted and what
>is known is incorrect. For example, we know that the criteria, even if
>it swept in a few liberal groups, was specifically designed to search
>for words and phrases more common among groups loosely part of a
>certain high-profile, highly decentralized, conservative grassroots
>movement, and therefore was by definition politically motivated. Groups
>were not pulled for more scrutiny because their applications indicated
>political activity as the IRS defines it, but because they had certain
>buzzwords that the Service deemed to be associated with a conservative
>movement. It appears that if two applications matched word for word,
>except that one used certain buzzwords associated with a conservative
>groundswell in its name and another did not, the former was pulled and
>the latter was not. That is what is admitted and supported by the IG
>report. There's more more that Michael states below that I think is
>incorrect at worse or remarkably tendentious at best but I am supposed
>to be on vacation.
>
>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: Friday, June 07, 2013 1:13 AM
>To: law-election at UCI.edu
>Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized
>EOs Were Not Conservative
>
>When this story first broke, there were claims that all organizations
>with conservative sounding names and agendas were unfairly "targeted."
>That claim has been proven false now that we know a good number of
>liberal groups engaged in political activity were also scrutinized.
>Mistakes were made, but there is no indication those mistakes were
>politically motivated. This is what the IRS "admitted" and is supported
>by the IG.
>
>We also heard how only conservative groups were given the lengthy
>questionnaire, and that claim has proven false. And we heard how
>conservative groups had to wait a long time for their applications to
>be approved, and while true, we have learned that liberal organizations
>were denied their applications while no conservative groups were. Which
>is worse, a delay or denial? There is also reporting that some
>conservative organizations claimed on their application that they were
>primarily a social welfare organization, and then devoted nearly all
>their resources to political activities, while the IRS turned a blind
>eye. That is to say, that some conservative organizations might have
>merited denial, or might now merit another review. Imagine the uproar
>if that happened, even if justified. The system was broken, and now it
>is probably fatally so.
>
>So, yes, I know that all organizations with the keywords were reviewed.
>My continued question is whether or not the organizations were engaged
>in political activity that would have merited a review in the first
>place, and if we can determine if the review rates were unequal for
>liberal and conservative groups. Keyword search aside, did all
>organizations -- conservative and liberal -- reviewed merit review?
>Were they engaged in political activity? So far, at every turn as my
>questions are answered, the claims about unfair targeting continue to
>be chipped away.
>
>I will also say that I am still not convinced yet that the IRS should
>be exonerated on the question of partisan mischief. I'd like to see my
>question fully answered before I am satisfied. I think conservatives
>are correct to question what happened. But, when you have people like
>Rep. Issa and FOX News overplaying their hand, this affair has played
>out as many, including myself, thought it would: a devolution into
>partisanship without a hope of finding a real solution to the
>underlying problem of the IRS making judgments about the degree of
>political activity of a social welfare organization.
>
>============
>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: David Keating [mailto:dkeating at campaignfreedom.org]
>Sent: Thursday, June 06, 2013 11:13 PM
>To: Michael P McDonald; law-election at UCI.edu
>Subject: RE: [EL] News Analysis: Substantial Minority of Scrutinized
>EOs Were Not Conservative
>
>Please read the report. The extended review rate (it was not an audit)
>was 100% for such groups.
>
>>From page 8 of TIGTA's report, which the IRS does not deny:
>
>"we determined during our reviews of statistical samples of I.R.C. §
>501(c)(4) tax-exempt applications that all cases with Tea Party,
>Patriots, or 9/12 in their names were forwarded to the team of
>specialists."
>
>Note it says ALL CASES.
>
>And as Bill points out, these cases essentially sat, unapproved.
>
>Page 11 of the report says "As of December 17, 2012, many organizations
>had not received an approval or denial letter for more than two years
>after they submitted their applications. Some cases have been open
>during two election cycles (2010 and 2012)."
>
>I don't get why some people think there is any equivalence. It is not
>even close.
>
>Do some IRS agents wrongly subject liberal groups for scrutiny? Of
>course. But nothing has come to light of criteria developed on other
>issues to screen 100% of other applications.
>
>David
>_________________________________________________
>David Keating | President | Center for Competitive Politics
>124 S. West Street, Suite 201 | Alexandria, VA 22314
>703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
>www.campaignfreedom.org
>
>
>-----Original Message-----
>From: law-election-bounces at department-lists.uci.edu
>[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
>Michael P McDonald
>Sent: Thursday, June 06, 2013 7:07 PM
>To: law-election at UCI.edu
>Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized
>EOs Were Not Conservative
>
>Since there is a wide range of claims about what the IRS did, it would
>be worthwhile to contribute to a discussion worthy of a former member
>of the FEC and a distinguished law professor, to know what Brad thinks
>the IRS has admitted to rather than try to divine it from one sentence
>snark.
>
>I have been clear that I think the IRS was stupid to use a politically
>charged search term to flag applications, but that this does not mean
>that conservative groups were unfairly flagged by the IRS. This is what
>I believe the IRS has admitted to, and the linked story has a number of
>quotes to this effect. The evidence that has been brought to light
>supports the IRS. Bloomberg reported that while no conservative groups
>were denied their applications, liberal groups were given the same
>questionnaire and were even denied status. And now we have a clearer
>picture that a number of liberal groups were given heightened scrutiny
>along with conservative groups.
>
>Still, this is insufficient evidence that the IRS was just stupid. We
>need to know the "audit" rate of liberal groups and conservative groups
>to know if conservative groups were unfairly flagged for attention. And
>since I cannot prove a negative, it is always possible that there was
>true politically motivated malfeasance. But no such evidence has come
>to light yet.
>
>============
>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: Smith, Brad [mailto:BSmith at law.capital.edu]
>Sent: Thursday, June 06, 2013 6:32 PM
>To: Trevor Potter
>Cc: Michael P McDonald; law-election at UCI.edu
>Subject: RE: [EL] News Analysis: Substantial Minority of Scrutinized
>EOs Were Not Conservative
>
>Admission against interest. Thanks for playing.
>
>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: Trevor Potter [tpotter at capdale.com]
>Sent: Thursday, June 06, 2013 5:35 PM
>To: Smith, Brad
>Cc: Michael P McDonald; law-election at UCI.edu
>Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized
>EOs Were Not Conservative
>
>Brad
>
>I thought you did not trust what the IRS says, and would therefore
>support an outside more in depth analysis, no matter where the chips
>fall?
>
>Trevor Potter
>
>
>Sent from my iPad
>
>On Jun 6, 2013, at 4:39 PM, "Smith, Brad" <BSmith at law.capital.edu>
>wrote:
>
>>  Meanwhile, some people continue to deny that the IRS did what the IRS
>>has already admitted.
>>
>>  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: Thursday, June 06, 2013 1:22 PM
>>  To: law-election at UCI.edu
>>  Subject: Re: [EL] News Analysis: Substantial Minority of Scrutinized
>>  EOs Were Not Conservative
>>
>>  Correction, I read this too hastily, this analysis just shows that a
>>good number of left groups were scrutinized. We know from previous
>>posts that no right group was denied status, but left groups were.
>>
>>  And to also be fair to the author, the report also notes that we need
>>more data on all the applications.
>>
>>  ============
>>  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
>>  Michael P McDonald
>>  Sent: Thursday, June 06, 2013 1:11 PM
>>  To: law-election at UCI.edu
>>  Subject: [EL] News Analysis: Substantial Minority of Scrutinized EOs
>>  Were Not Conservative
>>
>>  Martin Sullivan's analysis shows that more liberal groups were denied
>>501c4 tax exempt status by the IRS than conservative groups.
>>
>>
>>http://www.taxanalysts.com/www/features.nsf/Articles/D2A6C735EAFA7A908
>>  5257B7B004C0D90
>>
>>  This is an important part of the puzzle that demonstrates
>>conservative organizations were not unfairly targeted by the IRS. But,
>>we still do not know from this analysis if the audit rate for
>>conservative groups was higher than liberal groups. We have to look at
>>all ~60,000 applications for that information.
>>
>>  ============
>>  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
>>
>>
>>
>>  _______________________________________________
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>>
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