A Further Perspective

Flatten the IRS

When the prognosis is dire, radical surgery is in order. (Revised and updated)

By 5.20.13

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(Revised and Updated)

Over a pleasant weekend here in The Nation’s Only Boom Town, the avalanche of awful disclosures about the Internal Revenue Service continued with no end in sight. These developments are revealing, not only about the current administration but also about the imperious behavior of the federal government generally. Below I mention some salient facts, raise a simple question, suggest the obvious answer and the conclusion that flows from it, and offer a modest proposal for dealing with the IRS in a corrective manner. 

In addressing the pervasive IRS targeting of conservative organizations and their supporters, the President and his administration have paid lip service to the notion of “fixing” the problem, initially promising action “if” it turned out that misconduct had occurred. From the outset, the President denied he knew the IRS was systematically targeting his political opposition until he learned of it though press reports last week, despite widespread reporting on the issue last year and notwithstanding that the White House counsel had been informed at least weeks earlier. (A satirical report in the New Yorker even had the President denying any involvement in the federal government over the past four years!)

Marching in step, assorted administration minions -- most notably the loyal former Acting IRS Commissioner Steven T. Miller, in congressional testimony on Friday -- denied that the systematic harassment of conservative groups was “partisan,” and denied that the IRS engaged in “targeting” despite the use of that term no fewer than 16 times in the IRS Inspector General’s Report. Treasury Secretary Jack Lew, whose department oversees the IRS, insisted that the targeting of conservative groups was “inadvertent.” 

On Sunday, May 19, the New York Times published a lengthy article that sought to steer the story back to the administration narrative: A sad tale of unsupervised bureaucrats, lacking much in the way of guidance, who just happened to respond to “be on the lookout” orders (from somewhere) with a plan to “triage” applicants in a way that flagged “virtually every” group with “tea party” or “patriot” or “we the people” in its name. And by the way, they also singled out organizations that were concerned about “federal spending” and that had among their missions “educating on the Constitution.”

The Times also reveals that, despite the claimed confusion, lack of guidance, and “miscommunication” within the IRS, the agency’s staffers, “specialists” in “Cincinnati and elsewhere” -- apparently entirely on their own -- “began sending out exhaustive, sometimes intrusive questionnaires” to the groups singled out for “special scrutiny.” Alas, too, some applications got lost in the bureaucratic shuffle and were “ignored for months.” And there were only so many months until November 2012, so delay surely derailed the plans of many groups.

Denials and distractions aside, the facts themselves make crystal clear the deliberate, partisan, and systematic nature of this undertaking. According to news reports, in 27 months not one single “tea party” organization was granted tax-exempt status, while progressive groups (including the Barack H. Obama Foundation, run by the President’s half-brother) generally sailed through the process, often on an expedited basis. To first year law students these facts would bring to mind the term, “res ipsa loquitur” -- the thing speaks for itself, so there is no need for further proof. Still, tidal waves of further proof are rolling in, as victims come forward to describe their harassment and intimidation at the hands of the Obama IRS. Even the New York Times mentioned a few of these, and acknowledged that a number of IRS employees were “skeptical” that all of this occurred without “some direction from leadership in Washington.”

So, what about the President’s promise to hold people “accountable,” one might ask? Well, consider this: Sarah Hall Ingram, the woman who oversaw the program, received bonuses that were unusually high (by the relevant federal standards) during the period when the program was implemented. And now, presumably as a reward for her role in the intimidation of the opposition, Ms. Ingram has been promoted and put in charge of the IRS’s enforcement of the “Obamacare” statute. I guess that’ll teach her to use her agency’s power improperly for political ends!

Meanwhile, in his congressional testimony (which I watched), Mr. Miller refused to provide any names of those involved. He came to the hearing intentionally uninformed, and was visibly smug and defiant as he gave answers that served only to obfuscate. Lest we missed the point that the administration is unrepentant, the White House spokesman on the May 19 Sunday talk shows, Dan Pfeiffer, said the law was “irrelevant,” that this is not an “actual real scandal,” and that we needn’t concern ourselves with what happened, now that the President is focused on how to “fix” what went wrong. Nothing to see here, move along.

In addition, the Washington Post reportedin an article on Saturday, May 18, that Mr. Miller said the IRS has 140 to 200 people who work on applications for tax-exempt status. Presumably a sizable subset of these folks were charged with carrying out the targeting of conservative groups that occurred over the past couple of years. In a separate article on the same page, one IRS staffer was quoted saying that all orders “come from the top,” that people at the staff level “don’t have any authority to make those decisions” without “a directive.” Another agent added that, in this case, “more complex applications” were “elevated” from Cincinnati to Washington.

One IRS lawyer told the New York Times that it would be “tragic to see the IRS debilitated” by this matter because “its work is too important.” He expressed concern about a “witch hunt” that might cause low level IRS employees to be “too intimidated to enforce the tax code.” On the other hand, his views on the IRS’s intimidation of law abiding citizens, and the agency’s debilitation of political opposition to the administration, were not reported. Perhaps that was not news fit to print.

My question is this: Where are the honest, impartial IRS personnel who had the integrity to be shocked and angered by this overtly partisan attack on political speech, and who spoke up and demanded that it stop? And where are the lawyers in this very lawyer heavy agency, professionals bound by codes of ethics, who said not on my watch, this is improper? What are the names of these people, so that we may hear their stories and learn why nothing was done, well, at least not until after the administration’s political objectives were accomplished?

The answer, as best I can tell from media reports, is: Not a single person came forward. No IRS employees, and no IRS lawyers, said, “Wait a minute, this targeting is a very serious, unethical, inappropriate, and illegal attack on the exercise of first amendment rights; we should not be doing this.” Perhaps we’ll hear more in the future, but for now, all we have is implausible claims (as reported in the New York Times article) that this all occurred mysteriously and spontaneously, in some flyover country, third tier office in Cleveland.

The conclusion I draw from the answer is sobering: Honesty, integrity, and impartiality are in seriously short supply at the Internal Revenue Service. If you think this is too harsh a judgment, I refer you to the testimony of Mr. Miller before Congress on Friday, which offers substantial (albeit probably unintentional) corroborating evidence in support of my conclusion. Again, res ipsa loquitur

The prescription I offer comes in two parts, one of a remedial, “hold accountable” nature, and the other a forward looking, preventive measure.

First, as a remedial measure, every IRS employee involved in the targeting of conservative groups, even if the involvement was limited to following instructions from “the top,” should be fired. And their superiors (yes, most emphatically including one Sarah Hall Ingram) should be fired as well, for they are responsible and should not be saved by the dodge of “deniability.”

Sympathy for the IRS people who carried out this scheme is not appropriate. Remember, these are all people who, although legally obligated to enforce the law in an even handed manner, have proved themselves willing to participate or acquiesce in the use of governmental power to harass and intimidate American citizens simply because they disagree with this administration. These are people who should never work at the IRS or anywhere else in government. They are certainly identifiable; they should be fired immediately, and barred for life from government employment of any sort. 

Second, Congress should enact a flat tax. Properly designed, this could eliminate the IRS’s power to grant exemptions from taxes to some citizens and groups, while persecuting others. Such a reform, ideally, would leave little or nothing in the tax code to politicize. It would also simplify enforcement and permit the dramatic downsizing of the IRS, which clearly cannot be trusted with even a fraction of the power it now wields.

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About the Author

Ray V. Hartwell, III was a Washington lawyer and a senior fellow at the Alabama Policy Institute. He died on February 7, 2014, in Anniston, Alabama.