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Legal Fallacy Underlies Defense of IRS Harassment by Progressives

Progressives such as those at the Daily Kos are arguing that it would have been just fine to for the IRS to investigate all groups critical of the government, as opposed to just conservative groups personally critical of President Obama in particular. Thus, if the IRS is proven to also have investigated left-wing critics of President Obama, or critics of GOP officials, as well, then it did nothing wrong, since it was not engaged in viewpoint discrimination in violation of the First Amendment. Under this logic, it would have been okay for the government to harass critics of wars that were supported by both political parties (like the Vietnam War and the War in Iraq, which initially had bipartisan support, and World War I, which had bipartisan support from start to finish).

This argument shows a real ignorance of the First Amendment, in assuming that when powerful officials harass dissidents, that is just fine as long as they harass both conservative and non-conservative dissidents at the same time. The Supreme Court has rejected this pinched view of the First Amendment in Rosenberger v. Rector and Visitors of the University of Virginia (1995), which said that suppressing multiple opposing viewpoints rather than just one is just as unconstitutional. The Supreme Court first noted that "viewpoint discrimination" is "an egregious form of content discrimination," and thus is forbidden even in areas (like government funding and tax exemptions) where content discrimination is sometimes permitted. Then it rejected the argument more recently made by at the Daily Kos:

The dissent's assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar . . . Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. . .The dissent's declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways.

The Daily Kos blog takes the position debunked by the Supreme Court. It argues that the IRS investigation of groups that applied for 501(c)(4) status was just fine assuming it wasn't limited to Tea Party groups, but also covered other groups (The IRS also investigated groups that "criticized how the country is being run" -- including groups that opposed deficit spending -- or taught about the Constitution). A Daily Kos author says that "what . . we do know of" the investigation was that it involved a "focus on nonprofit applications critical of the government, not the president—and again, the apparent goal was to filter out primarily political groups in an application process that was supposed to specifically disqualify, by law, political groups. The 'scandal' part of the 'scandal' would be that certain groups were targeted by name, e.g. 'Tea Party,' which would focus on one certain narrow part of the political spectrum. That apparently political groups were targeted for extra scrutiny when seeking nonprofit status, however, is exactly what was supposed to happen."

So in his view, it's fine for the government to harass its critics, while leaving water carriers for the Obama administration (like the DailyKos) alone, as long as the government harasses not just the Tea Party but also left-leaning, moderate, or libertarian critics of the Obama administration's policies and its civil-liberties violations. (Glenn Greenwald, and former ACLU Board Members Wendy Kaminer and Harvey Silverglate being examples of non-conservative critics of the Obama administration and its repeated violations of basic civil liberties, see here and here, for example.)

Daily Kos is also just plain ignorant of the tax code and what qualifies a group for 501(c)(4) status, the status sought by the groups investigated by the IRS. It thinks that 501(c)(4) groups are supposed to be non-political, when the whole reason for many groups seeking 501(c)(4) status rather than 501(c)(3) status is because they admittedly were political and thus didn’t qualify as a 501(c)(3). 501(c)(4) status is radically less favorable than 501(c)(3) status, and the reason you put up with it instead is because (c)(4) status lets you engage in politics, while (c)(3) status doesn't, except to a very limited extent. Donations to a 501(c)(4) are not tax-exempt, unlike donations to a 501(c)(3), which are. A 501(c)(4), like a 501(c)(3), doesn't have to pay taxes on the gifts it receives, but that is a pretty small benefit compared to the tax deduction for its donors that a 501(c)(3) gets. The constant refrain on left-wing blogs that Tea Party groups were getting 501(c)(4) status in order to shield their wealthy donors from taxes is thus ludicrous and false on its face. Those donors could not claim any such tax exemption for a contribution to a (c)(4) like a Tea Party group. (Most of these groups were run on a shoe-string budget, and thus could not afford a tax lawyer to handle the IRS's endlessly burdensome inquiries about their donors, their officers' relatives, their meetings, their Facebook posts, etc.)

Even putting aside any issue of viewpoint discrimination, the IRS investigative demands on Tea Party and other groups were so needlessly burdensome, and and sought so much legally irrelevant information, that it violated federal appeals court rulings such as White v. Lee (2000), which ruled that federal officials could be held individually liable under the First Amendment for merely investigating groups in a prolonged and unnecessarily burdensome way, even if the investigation was ultimately dropped without any fine or penalty.

As Politico notes, the IRS made incredibly burdensome demands for irrelevant information from Tea Party groups:

A POLITICO review of documents from 11 tea party and conservative groups that the IRS scrutinized in 2012 shows the agency wanted to know everything — in some cases, it even seemed curious what members were thinking. . . The long-awaited Treasury Department inspector general report released Tuesday says the agency itself decided some of its questions to conservative groups were way over the line — especially the one about donors. . . .

“They were asking for a U-Haul truck’s worth of information,” said Toby Marie Walker, the president of the Waco Tea Party.

Some groups even gave up in the face of the IRS questions.

Several of the groups were asked for résumés of top officers and descriptions of interviews with the media. One group was asked to provide “minutes of all board meetings since your creation.”

Some of the letters asked for copies of the groups’ Web pages, blog posts and social media postings — making some tea party members worry they’d be punished for their tweets or Facebook comments by their followers.

And each letter had a stern warning about “penalties of perjury” — which became intimidating for groups that were being asked about future activities, like future donations or endorsements.

In one instance, the American Patriots Against Government Excess was asked to provide summaries or copies of all material passed out at meetings. The group had been reading “The 5000 Year Leap” by Cleon Skousen and the U.S. Constitution.

The group’s president, Marion Bower, sent a copy of both to the IRS. “I don’t have time to write a book report for them,” she said.