The IRS itself admitted wrongdoing, and President Obama declared today, “it should not matter what political stripe you’re from — the fact of the matter is, is that the IRS has to operate with absolute integrity.” But that doesn’t mean there’s no one willing to defend the IRS.
First, there was the Jeffrey Toobin model, which argued, Hey, these guys were kind of trying to game the system because they’re not really “social welfare” groups, and sure the rules should have been applied equally, but the “real scandal” is that these tiny Tea Party groups and their unidentified donors are allowed to distort the democratic system! More on this notion in a moment.
The New Republic goes a little more audacious in its take on this “trumped-up scandal.” According to Noam Scheiber, the persecution of the Tea Party was caused by the Tea Party’s persecution complex. Their silly paranoia about the government was a self-fulfilling prophecy, you see, inexorably pulling the IRS into the unfortunate optics of the current situation by their perfectly logical profiling of conservative groups.
But, in fact, the IRS’s great conservative crackdown is even more innocent than that. It turns out that the applications the conservative groups submitted to the IRS—the ones the agency subsequently combed over, provoking nonstop howling—were unnecessary. The IRS doesn’t require so-called 501c4 organizations to apply for tax-exempt status. If anyone wants to start a social welfare group, they can just do it, then submit the corresponding tax return (form 990) at the end of the year. To be sure, the IRS certainly allows groups to apply for tax-exempt status if they want to make their status official. But the application is completely voluntary, making it a strange basis for an alleged witch hunt.
So why would so many Tea Party groups subject themselves to a lengthy and needless application process? Mostly it had to do with anxiety—the fear that they could run afoul of the law once they started raising and spending money. “Our business experience was that we had to pay taxes once there was money coming through here,” says Tom Zawistowski, the recent president of the Ohio Liberty Coalition, which tangled with the IRS over its tax status. “We felt we were under a microscope. … We were on pins and needles at all times.” In other words, the groups submitted their applications because they perceived themselves to be persecuted, not because they actually were…
So the crime here had nothing to do with “targeting” conservatives. The targeting was effectively done by the conservative groups themselves, when they filed their gratuitous applications. The crime, such as it is, was twofold. First, in the course of legitimately vetting questionable applications, the IRS appears to have been more intrusive than justified, asking for information about donors whose privacy it should have respected. This is unfortunate and intolerable, but not quite a threat to democracy.
So, that’s what a good-faith effort to follow the law will get you. Why be skeptical of the federal government?
But let’s go back to the “social welfare” term on which Toobin’s argument and part of Scheiber’s rests. Josh Barro:
“Social welfare” is a term of art that doesn’t mean exactly what it sounds like. To qualify, a group must have the aim of producing benefits that accrue to the community as a whole, not just its members. “Benefit” and “community” are construed broadly; organizations do not have to demonstrate that the policies they promote are good or that they benefit everyone.
You can see this in the IRS regulations governing 501(c)(4) groups. These groups may engage in unlimited lobbying related to their social welfare missions. The IRS offers these specific examples of acceptable activity: “promotion of legislation on animal rights,” “advocacy of anti-abortion legislation,” “legalization of currently illegal activity” and “advocacy of changes in the tax law.”
The groups can also engage in electioneering, even endorsing candidates. Here’s the IRS: “An exempt IRC 501(c)(4) organization may intervene in political campaigns as long as its primary activity is the promotion of social welfare.”
So when Jeffrey Toobin writes in the New Yorker today that what the IRS did was OK in part because “501(c)(4) organizations must refrain from traditional partisan political activity, like endorsing candidates,” he’s wrong.
As many pointed out today, Media Matters’ 501(c)4 is allegedly the same kind of “social welfare” organization as the Tea Party groups applying for exempt status, and no one would claim its aims are free of ideology or partisanship. Even 501(c)3s, which aren’t allowed to do any electioneering, are allowed to be ideological in nature. Think tanks like The Heritage Foundation and Center for American Progress are (c)3s. They certainly have views they push, and those views pertain to public policy, but they’re not dishonestly classified as (c)3s.
One last argument in defense of the IRS is that these conservative groups were all fronts for big sources of anonymous and corporate money meant to corrupt the democratic system. I don’t personally believe leaving political speech relatively unregulated corrupts the political system, but even if one does, the truth is it was small groups with few donors that took the brunt of this crackdown. As with any complex system, anyone with money enough to make campaign finance reformers want to shut them up, also had money enough for good lawyers who could get them through the system. Complexity is a subsidy for the big guys.
This is actually who suffers:
Stefano said she tried to start her own group called The Loyal Opposition between 2010-2011. But when she applied for tax exempt status, the IRS responded with a litany of questions that put her off.
“I was pregnant and on a single income and they were asking me questions like, ‘Are you on Facebook,” she said incredulously. “They wanted my personal Facebook page.”
“A lawyer told me, ‘They’re going to come after you and if you make one mistake they could ruin your life’,” Stefano added. “I like to think of myself as very tough, but I’m ashamed to say I was intimidated and frightened, and I shut it down.”
Or, this one:
Anastasia Przybylski, co-chairwoman of the Bucks County-based Kitchen Table Patriots, said she continues to experience a similar IRS response, with her most recent interaction coming last week.
“When we started, we were apprehensive,” Przybylski said. “Our families and friends thought we were crazy. Now, I don’t feel comfortable. I wish that wasn’t the case. I wish they weren’t using these kinds of tactics, but the fact is that they are. For a tiny organization like ours, is it really worth it?”
Once the 2012 tax filing for the group is fully processed, she said the group will likely shut down.
“We’re still going to have the organization,” Przybylski said. “I just don’t know if we need the [tax exempt status]. If the amount of money in our account is just $2,000 total, I don’t see the benefit to it. I know plenty of people who have a website and an organization without having a formal entity.”
And, this one:
“We’re just regular citizens,” said one member who only spoke on condition of anonymity. “It’s not like we have access to resources to deal with this. Whenever you get pushback from the IRS of this magnitude you’re not able to deal with it.”
The member said the IRS replied to their 2009 application for tax exempt status with the same multi-questionnaire response other groups had gotten. Six months, thousands of dollars, and countless hours later, they gave up.
“As a result of receiving that questionnaire, the person who was our treasurer quit, and the group decided to not move forward with tax exempt status,” the member said. “That’s an example of the type of affect this type thing has.”
That’s just Pennsylvania. But didn’t the Kitchen Table Patriots bring it on themselves, what with their $2,000 in shady money and their overzealous attempts to comply with tax law?