[EL] Curious double election law issues in investigation of IRS targeting

[Trevor Potter]

If it is in fact against the law or department regulations to deny a civil service employee a position or responsibility based on their political contributions (I do not know that to be the case in fact, but am reacting to the post) that would seem a sensible protection of political speech in a governmental setting, and would likely be designed to avoid reprisals for political views discovered through mandated disclosure.

Trevor Potter

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Friday, January 10, 2014 2:57 PM
To: law-election at UCI.edu
Subject: [EL] Curious double election law issues in investigation of IRS targeting

Legally mandated campaign contribution disclosures reveal that the DOJ Civil Rights Division attorney tasked with investigating the IRS targeting of certain 501(c)(4) applicants made multiple contributions to the Obama campaigns and the DNC. Thus, there are allegations of bias and conflict of interest. See, for example, http://www.washingtonpost.com/blogs/federal-eye/wp/2014/01/09/obama-political-donor-leading-justice-departments-irs-investigation/, and the letter from Representatives Issa and Jordan to Attorney General Holder, http://oversight.house.gov/wp-content/uploads/2014/01/2014-01-08-DEI-Jordan-to-Holder-DOJ-IRS-tax-exempt-applicants.pdf. Yet we are told (in the same Wash. Post article) that the Justice Department could not take such contributions into account in deciding whether to assign that task to her:

"It is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions," DOJ spokeswoman Dena Iverson said in a statement. "Additionally, removing a career employee from an investigation or case due to political affiliation, as Chairmen Issa and Jordan have requested, could also violate the equal opportunity policy and the law."

Is the government actually prohibited from reviewing campaign contribution disclosures in this way, or taking into account the appearance of bias or conflict of interest potentially revealed by such disclosures, when the investigation is politically charged? What might this tell us about the propriety (pro or con) of requiring disclosure of contributions by government officials or others?

Just to make clear, I don't know anything about the attorney (Barbara Bosserman), other than what I've read in the press, and am not accusing her of bias in this matter.

I thought it was curious that an election law matter - the targeting of groups allegedly because of their expected participation in electoral politics - would trigger another election law issue, the proper use of mandated campaign contribution disclosures.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law




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