[EL] IRS Enters Consent Decree with, Apologizes to, True the Vote

[Jim]

I represent True the Vote in this case against the IRS and agreed to the Consent Decree.

As one intimately involved in the litigation since last year, but not from the beginning, I can provide some insight about this case and the 3 other cases that have also recently settled.

First, when we became involved in 2017, there were no ongoing settlement negotiations and we were reliably informed that no settlement negotiations had ever taken place, at least in our case. Instead, the Obama IRS and DOJ vigorously contested our case, as they did others. Theynever once acknowledged any wrongdoing in court, until the Consent Decrees were filed. And their litigation tactics were of the scorch earth variety.  

When Sessions became AG, we wrote him indicating that we believed that the IRS cases were ones that should be settled and indicated our interest in doing so. This letter was the trigger to settlement negotiations in our case, and apparently others.

Second, yes there were damages claims in these cases.  Some damages claims were dismissed, as they were in the True the Vote case. However, in the NorCal Tea Party case, a class action of about 400 groups, a damage claim was still being litigated when the case settled and the IRS agreed to pay $3.5 million in damages to those groups.  Thus, John is in error when he said that the effort to seek damages was “entirely unsuccessful.”

In addition, the litigations have resulted in declaratory judgements that provide significant protection to groups in the future who may be targeted for viewpoint discrimination. This alone has justified this litigation. It has also shined sunlight on the IRS’s corrupt practices and, as we are often reminded, sunlight is the best disinfectant.

And, in our case, the IRS has expressly acknowledged that we may seek attorneys fess from the IRS, which we will be filing shortly.

Third and finally, it is wholly the IRS’s fault that they do not have clear guidance on generally what it takes to qualify as a 501( c) (4) or ( c)(3) or specifically what is prohibited as “political intervention.” They have consistently refused to adopt regulations that would set forth any bright line standards for these determinations and they have enjoyed employing their vague, ad hoc and ex post facto “facts and circumstances” test. And the IRS’s proposed rulemaking on this during the Obama administration, which Congress stopped, was headed down the same road.

But the wrong at the heart of this litigation was not political intervention, but the fact that the IRS explicitly targeted conservative groups for grossly adverse treatment during their application process. There is no doubt that this was wrong and the people at the IRS involved in this did it knowingly and intentionally.  They should have been punished for this intentional wrongdoing, but, as we know, swamp creatures are rarely held into account for their wrongdoing.  They are just reassigned or retire at full pay.  Jim Bopp

James Bopp, Jr.
Attorney
The Bopp Law Firm, PC | www.bopplaw.com
The National Building | 1 South 6th Street | Terre Haute, IN 47807
voice: (812) 232-2434, ext. 22 | fax: (812) 235-3685 | cell: (812) 243-0825 | jboppjr at aol.com


Sent from Mail for Windows 10

From: John Pomeranz
Sent: Wednesday, January 24, 2018 1:30 PM
To: Rick Hasen; Election Law Listserv
Subject: Re: [EL] IRS Enters Consent Decree with, Apologizes to,True the Vote

In answer to Rick’s question, yes, of course the Obama-era IRS would have agreed to a consent order like this.  Indeed, it essentially did so on the day the IRS scandal first broke on May 10, 2013, when Lois Lerner acknowledged that groups had been improperly targeted for heightened scrutiny and inordinate delays in IRS review of the organizations’ tax-exemption applications, and thereafter when the IRS took steps to address those problems in response to the first TIGTA report that quickly followed that acknowledgement.  (All of which is reported in the stipulated facts in this consent decree.)

However, people couldn’t take yes for an answer.  True the Vote and other the groups that were victims of this IRS misconduct decided to seek damages from the IRS and from individual IRS employees, an effort that has been entirely unsuccessful.  And certain members of Congress spent an awful lot of time and money seeking evidence of misconduct beyond what has been revealed by the IRS and TIGTA, a mostly fruitless exercise.

The most interesting thing in this consent decree concerns TIGTA’s call for guidance on what organizations qualify for exemption under section 501(c)(4), an effort that the IRS and Treasury undertook but that was then blocked by congressional action.  The consent decree’s stipulated facts agreed to by the parties to this suit include this quote from TIGTA about such guidance:

"[u]ntil this guidance is finalized , the IRS does not have a clearly defined test for determining whether an organization's request for exemption as a social welfare organization should be approved. As a result, for those applicants not choosing the optional expedited process, the IRS continues to use a subjective facts and circumstances process."

It is a mystery to me why those so quick to criticize the IRS for its misconduct remain unwilling to allow the Treasury Department, with a Trump-appointed Secretary, Assistant Secretary of Tax Policy, and (soon apparently) IRS Commissioner, return to this guidance project so desperately needed to prevent future abuse of applicants for tax-exempt status.



John Pomeranz 
Harmon, Curran, Spielberg & Eisenberg, LLP 
1725 DeSales Street, NW, Suite 500
Washington, DC  20036 
p: 202.328.3500 
f: 202.328.6918 
e: jpomeranz at harmoncurran.com 






IRS Enters Consent Decree with, Apologizes to, True the Vote for Lois Lerner Controversy
Posted on January 24, 2018 7:40 am by Rick Hasen
I wonder if the Obama-led IRS would have agreed to this.

Posted in tax law and election law

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