[EL] Fwd: FW: IRS Enters Consent Decree with, Apologizes to, True theVote [resent message for Jim Bopp]
Rick Hasen
rhasen at law.uci.edu
Fri Jan 26 08:55:10 PST 2018
Rick Hasen
Sent from my iPhone. Please excuse typos.
_____________________________
From: Jim <jboppjr at aol.com>
Sent: Friday, January 26, 2018 8:54 AM
Subject: RE: [EL] FW: IRS Enters Consent Decree with, Apologizes to, True theVote [resent message for Jim Bopp]
To: John Pomeranz <jpomeranz at harmoncurran.com>, <brendan.fischer at gmail.com>, Rick Hasen <rhasen at law.uci.edu>
Cc: <law-election at uci.edu>
John, I am not sure that all the swamp creatures have been driven out of the IRS yet, but you can be assured that this is at the top of my list to get done. I know you agree. Jim
Sent from Mail<https://go.microsoft.com/fwlink/?LinkId=550986> for Windows 10
From: John Pomeranz<mailto:jpomeranz at harmoncurran.com>
Sent: Friday, January 26, 2018 11:41 AM
To: jboppjr at aol.com<mailto:jboppjr at aol.com>; brendan.fischer at gmail.com<mailto:brendan.fischer at gmail.com>; rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: RE: [EL] FW: IRS Enters Consent Decree with, Apologizes to, True theVote [resent message for Jim Bopp]
Jim, now’s your best chance. Your side is in charge at Treasury and the IRS, both houses of Congress, and the White House. Plus, decades of effort have been unsuccessful in getting the existing “facts and circumstances” test struck down in the courts. So, why not let the rulemaking recommence and see if you like the rule you get any better? If you still don’t like the result, there’s always the CRA to block the final rule.
Want to join me in calling for lifting the rulemaking freeze?
John Pomeranz
Harmon, Curran, Spielberg & Eisenberg, LLP
1725 DeSales Street, NW, Suite 500
Washington, DC 20036
office: 202.328.3500
mobile: 703.597.7663
fax: 202.328.6918
e: jpomeranz at harmoncurran.com<mailto:jpomeranz at harmoncurran.com>
From: Law-election [mailto:law-election-bounces at department-lists.uci.edu]On Behalf Of jboppjr at aol.com
Sent: Friday, January 26, 2018 9:25 AM
To: brendan.fischer at gmail.com; rhasen at law.uci.edu
Cc: law-election at uci.edu
Subject: Re: [EL] FW: IRS Enters Consent Decree with, Apologizes to, True the Vote [resent message for Jim Bopp]
In my view,
(1) Yes, Congress stopped the IRS from rulingmaking, because of the legitimate concern that the IRS was planning on making things worse, not better. For many decades the IRS has refused, over and over again, to adopt bright line rules, so it is their fault. I certainly support adoption of bright line rules by either Congress or the IRS. It is possible that under the Trump administration the IRS might be trusted to do this, but we will see.
(2) It is true that it was recently revealed that the IRS also targeted some liberal groups. But there is no question that the IRS's principal target was conservative groups and they were much more adversely affected.
But I dont want anyone to misunderstand, I am opposed to viewpoint discrimination, regardless of which side is targeted. The result in the TTV case, and others, sought to protect everyone in the future, but that work is not yet completely done. Jim Bopp
In a message dated 1/25/2018 10:17:14 PM US Eastern Standard Time,brendan.fischer at gmail.com<mailto:brendan.fischer at gmail.com> writes:
It is not "wholly the IRS’s fault that they do not have clear guidance on generally what it takes to qualify as a 501(c)(4)." Congress has blocked the IRS from adoptingany rules on precisely this issue. From Sec. 126 of the FY 2017 appropriations bill:
none of the funds made available in this or any other
Act may be used by the Department of the Treasury, including the
Internal Revenue Service, to issue, revise, or finalize any
regulation, revenue ruling, or other guidance not limited to a
particular taxpayer relating to the standard which is used to
determine whether an organization is operated exclusively for
the promotion of social welfare for purposes of section
501(c)(4) of the Internal Revenue Code of 1986 (including the
proposed regulations published at 78 Fed. Reg. 71535 (November
29, 2013));
Moreover, the claim that "the IRS explicitly targeted conservative groups for grossly adverse treatment during their application process" is not borne out by the Inspector General's report<https://www.treasury.gov/tigta/auditreports/2017reports/201710054fr.pdf>, which found that the IRS also targeted groups whose names included terms like “Progressive,” “Green Energy,” “Medical Marijuana,” or “Occupy,” or whose names had a perceived connection to ACORN, like "Communities for Change" or "Neighborhoods for Social Justice."
The evidence shows that, in the absence of clear rules (see above), IRS employees were trying to take shortcuts--however misguided--to identify groups on the left and right that may have been engaging in political advocacy inconsistent with (c)(4) or (c)(3) status.
On Wed, Jan 24, 2018 at 5:31 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Jim Bopp sent this message to the listserv a few hours ago. I understand some people did not receive it. I am resending it here.
(If you did not receive Jim’s earlier message, could you send me a private message letting me know that from the email address you use for the listserv? Trying to figure out the technical aspects of the problem here.)
From: Jim <jboppjr at aol.com<mailto:jboppjr at aol.com>>
Date: Wednesday, January 24, 2018
Subject: RE: [EL] IRS Enters Consent Decree with, Apologizes to,True the Vote
To: John Pomeranz <jpomeranz at harmoncurran.com<mailto:jpomeranz at harmoncurran.com>>, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
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<http://www.bopplaw.com>
The National Building | 1 South 6th Street | Terre Haute, IN 47807
voice: (812) 232-2434, ext. 22<tel:(812)%20232-2434> | fax: (812) 235-3685<tel:(812)%20235-3685> | cell: (812) 243-0825<tel:(812)%20243-0825> |jboppjr at aol.com<mailto:jboppjr at aol.com>
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From:John Pomeranz<mailto:jpomeranz at harmoncurran.com>
Sent: Wednesday, January 24, 2018 1:30 PM
To: Rick Hasen<mailto:rhasen at law.uci.edu>;Election Law Listserv<mailto:law-election at uci.edu>
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<tel:(202)%20328-3500>
f: 202.328.6918<tel:(202)%20328-6918>
e: jpomeranz at harmoncurran.com<mailto:jpomeranz at harmoncurran.com>
IRS Enters Consent Decree with, Apologizes to, True the Vote for Lois Lerner Controversy<http://electionlawblog.org/?p=97077>
Posted on January 24, 2018 7:40 am<http://electionlawblog.org/?p=97077> by Rick Hasen<http://electionlawblog.org/?author=3>
I wonder if the Obama-led IRS would have agreed to this.<https://www.scribd.com/document/369806983/True-the-Vote-v-IRS-Consent-Order-Jan-21-2018>
Posted in tax law and election law<http://electionlawblog.org/?cat=22>
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