Why Is It So Hard to Keep the IRS Out of Politics?

Government officials need a refresher course in the First Amendment "anti-retaliation" principle.

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Kevin Lamarque/Reuters

Do Americans have a First Amendment right to form political committees named "Tea Party" (or for that matter, "Obama is from Kenya") without triggering an investigation by the Internal Revenue Service because of the name they picked?

In law, as so often there are two answers. One, of course, is "Yes."

The other is "@#$% yes."

Anybody has the right to engage in politics without being targeted for investigation because of their point of view. That's hornbook First Amendment law. Investigations -- whether criminal or regulatory -- ought to be governed by objective criteria, in which political viewpoint plays no part.

This is the constitutional backdrop to the revelation that officials in the IRS apparently used the name "Tea Party," or the point of view expressed in statements of purpose, to decide which "social welfare groups" to scrutinize when they applied for tax exemptions. These groups, known as 501(c)(4)s, are tax-exempt even if they engage in some political activities -- as long as politics is not the group's "primary activity."

Campaign reform groups have, with good reason, protested that some of these groups are pushing the rules. Since they aren't required to disclose their contributors, this makes them potential conduits for "dark money" to influence political campaigns. A number of reform groups have urged the IRS to investigate the groups more closely to make sure they really have a non-political "social welfare" purpose. There would be nothing wrong with such an investigation; but it would have to use fair, neutral criteria for picking its targets.

The IRS, however, chose another path. Sometime in March 2010, according to a government timeline published by the New York Times, someone in the IRS unit responsible for 501(c)(4) regulation began singling out applications from groups with "Tea Party" in the name. (Also flagged: "Patriots" and "9/12," and, remarkably, "We the People.") In January 2012, the criteria expanded to include "[p]olitical action type organizations involved in limiting/expanding government, education on the constitution and bill of rights" and "social economic reform/movement." Though the director of the unit learned about what was going on by June 2011, higher-ups assured Congress in March of the next year that no groups were being targeted for viewpoint reasons.

Now the mess has come spilling out. It's a good time for us to take a look at the "anti-retaliation" principle in First Amendment law. That principle was stated in 1972, in a case called Perry v. Sindermann:

[E]ven though a person has no "right" to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.

That principle extends to political conditions attached to tax exemptions. That principle ought to extend to being subjected to burdensome investigations too. "I'm not sure how much law there is because it is one of these things that everyone agrees shouldn't happen," Professor Lloyd Hitoshi Mayer of Notre Dame Law School, who has written extensively on the law and politics of tax exemptions, said in an interview yesterday. In the past, presidents (including Franklin Roosevelt, John F. Kennedy, and Richard Nixon) have used the IRS to intimidate or harass opponents; but after Watergate, there was general agreement that the agency needed to be non-political, and, by and large, it has been. From 1997-2000, the Congressional Joint Committee on Taxation investigated the IRS to determine whether the exemption process was being politicized; its report found "no credible evidence" that it had been. Two conservative organizations that claimed the Clinton-era IRS targeted them for audit or revocation of status; the District of Columbia Circuit found they didn't have the evidence.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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