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Jeffrey Toobin: 'Did the I.R.S. Actually Do Anything Wrong?'

9:23 PM, May 15, 2013 • By MARK HEMINGWAY
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Since the IRS admitted it improperly targeted conservative and Tea Party groups last Friday, journalists have worked tirelessly to expose the full extent of the growing scandal.

The New Yorker's Jeffrey Toobin isn't one of those journalists. Writing in the New Yorker, Toobin is asking the question that none of his peers thought to ask: "Did the I.R.S. actually do anything wrong?" If you have no problem with government agents demanding lists of what books you've been reading and people you associate with, along with a printout of all your social media postings, then go ahead and entertain Toobin's question. But Toobin doesn't want to discuss this part of the IRS's overreach. Instead, he launches into a long lament about the need for stricter campaign finance laws. And the problem of lax campaign finance laws means IRS harassment of political organizations attempting to get 501(c)(4) tax exempt status is perfectly reasonable:

So the scandal—the real scandal—is that 501(c)(4) groups have been engaged in political activity in such a sustained and open way. As Fred Wertheimer, the President of Democracy 21, a government-ethics watchdog group, put it, “it is clear that a number of groups have improperly claimed tax-exempt status as section 501(c)(4) ‘social welfare’ organizations in order to hide the donors who financed their campaign activities in the 2010 and 2012 federal elections.”

Some people in the I.R.S. field office in Cincinnati took the names of certain groups—names that included the terms “Tea Party” and “patriot,” among others, which tend to signal conservatism—as signals that they might not be engaged in “social welfare” operations. Rather, the I.R.S. employees thought that these groups might be doing explicit politics—which would disqualify them for 501(c)(4) status, and set them aside for closer examination. This appears to have been a pretty reasonable assumption on the part of the I.R.S. employees: having “Tea Party” in your name is at least a slight clue about partisanship.

Of course, the current scandal is not about what the law should be, it's about selective enforcement of the law as it is. Liberals and the alleged centrists in the "No Labels" crowd love to talk up tough campaign finance laws as a cure all for systemic political problems, but getting them to acknowledge the difficulty of, say, having the government define promoting "social welfare" without playing politics and trampling the First Amendment is nigh impossible.

In any event, the issue of abusing 501(c)(4) status is, as President Obama would say, a sideshow. The question is whether or not conservatives and Tea Party groups were singled out for unfair treatment. All signs point to "yes," according to USA Today:

As applications from conservative groups sat in limbo, groups with liberal-sounding names had their applications approved in as little as nine months. With names including words like "Progress" or "Progressive," the liberal groups applied for the same tax status and were engaged in the same kinds of activities as the conservative groups.

The article goes on to detail numerous instances of liberal groups skating through the IRS process and quickly being granted 501(c)(4) status. Toobin does finally feint at the problem of selective enforcement:

It is certainly true that the I.R.S., and every other part of the government, should be evenhanded in how it applies the law, regarding liberal and conservative groups alike. If left-leaning organizations were disguising their true purposes to obtain 501(c)(4) status, the I.R.S. should have turned them down, too.

But don't worry, Toobin's heart isn't really into advocating equal treatment under the law. In his next and final paragraph, Toobin concludes by fretting over what will become of the obviously well-intentioned IRS agents who put Tea Party groups through the wringer:

Campaign finance operates by shaky, or even nonexistent, rules, and powerful players game the system with impunity. A handful of I.R.S. employees saw this and tried, in a small way, to impose some small sense of order. For that, they’ll likely be ushered into bureaucratic oblivion.

 Well, you have to credit Toobin for putting a novel spin on an old defense: The IRS was just imposing order!

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