Undemocratic: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom (Part 2) – Guest Essayist: Jay Sekulow

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“Let’s translate: when evaluating progressive organizations, the IRS singled out only seven groups for additional scrutiny, asked an average of only 4.7 additional questions, and approved every single group.

By contrast, the IRS singled out 104 conservative groups, asked an average of 14.9 additional questions (some with multiple subparts), and ultimately approved fewer than half,”  Jay Sekulow. 

On September 16, 2010, President Obama was at it again, warning against a “foreign-controlled entity” that could be providing “millions of dollars” for “attack ads.” 12 Less than a week later he complained that “nobody knows” who was supporting conservative groups.13

The campaign continued. On September 21, 2010, the White House tried to enlist the mainstream media. Sam Stein, writing in the Huffington Post, described how “a senior administration official . . . urged a small gathering of reporters to start writing on what he deemed the most insidious power grab that we have seen in a long time.” 14

Insidious power grab? That describes the IRS, not the pro-life and conservative groups they were at that very moment systematically targeting. It is the IRS that is on the power trip.

What do I mean by “targeting”?

First, a bit about legality and process. One of the best ways to engage in so-called issue advocacy is to form a nonprofit corporation under Section 501(c)(4) of the Internal Revenue Code. While donations to these corporations aren’t tax-deductible, the corporation’s income isn’t taxed, and the donations to the corporation can be anonymous.

This protection—which prevents the government from controlling the message through the power to expose dissenters or to tax dissent—means that so-called (c)(4)s are nearly ideal vehicles for engaging in cultural and ideological argument, a fact the Left has long known.

Think of the most influential organizations on the Left—like Planned Parenthood, the ACLU, or the radical MoveOn.org. They all have affiliated 501(c)(4)s that enable them to fully engage the public. In short, nonprofit advocacy corporations have been around for a long time, the IRS has dealt with them for a long time, and conservatives had been behind the curve for an equally long time.

The Tea Party started to correct that imbalance, and the IRS was outraged. Normally, a 501(c)(4) application is a simple process: form the corporation, obtain an employer identification number, then complete and file IRS Form 1024, IRS Form 8718, and the appropriate fee.

Typically, the IRS will review the form and approve the application in a matter of months. On occasion, the IRS will respond with a few follow-up questions if the application is unclear or information is missing. Rarely does the process drag on. As I said, the IRS has been doing this for a long time.

But what happened when the Tea Party and other conservatives applied? How were they treated differently from the norm? This chart, from the House Ways and Means Committee, tells the story: 15

IRS Targeting Statistics of Files Produced by IRS Through July 29, 2013

Organization Names* Total Questions Asked

Average Questions Asked

Approved

Approved

%

Outstanding or Withdrawn
Conservative

8

100

12.5

3

38%

5

Tea Party

72

1012

14.1

33

46%

39

Patriot, 9/12

24

440

18.3

12

50%

12

Subtotal of Conservative Organizations

104

1552

14.9

48

46%

56

Progressive

7

33

4.7

7

100%

0

*One file In the enumerated categories has not been provided by the IRS despite numerous requests.

Let’s translate: when evaluating progressive organizations, the IRS singled out only seven groups for additional scrutiny, asked an average of only 4.7 additional questions, and approved every single group.

By contrast, the IRS singled out 104 conservative groups, asked an average of 14.9 additional questions (some with multiple subparts), and ultimately approved fewer than half.

This chart was first published in July 2013, and some of the conservative groups waiting for approval were still waiting as of the end of 2014.

At the ACLJ, we are litigating on behalf of forty-one groups, some of which had been waiting for approval since 2009. That means they applied for a tax exemption before the iPad was invented, before LeBron James went to the Miami Heat and won two championships, before the most recent British royal wedding (much less the British royal baby). The list could go on.

And the entire time that the Tea Party groups waited for these tax-exemption determinations, they were losing donations, spending hours with lawyers, and answering voluminous questionnaires rather than organizing and advocating for conservative and pro-life ideas.

And what about those questions?

The IRS used the tax-exemption application process to attempt to conduct litigation-style investigations into the funding and operations of not just the Tea Party groups but also their individual volunteers and their family members. Here’s a sampling of the questions the IRS asked:

Do you directly or indirectly communicate with members of legislative bodies? If so, provide copies of the written communications and contents of other forms of communications.

And

Please describe the associate group members and their role with your organization in further detail. (a) How does your organization solicit members? (b) What are the questions asked of potential members? (c) What are the selection criteria for approval? (d) Do you limit membership to other organizations exempt under 501(c)(4) of the Code? (e) Provide the name, employer identification number, and address of the organizations.

And

Do you have a close relationship with any candidate for public office or political party? If so describe fully the nature of that relationship.

List each past or present board member, officer, key employee and members of their families who:

a)         Has served on the board of another organization.

b)         Was, is or plans to be a candidate for public office. Indicate the nature of each candidacy.

c)          Has previously conducted similar activities for another entity.

d)         Has previously submitted an application for tax exempt status.16

These questions are illegal, pure and simple. They are outside the scope of legitimate inquiry and violate the First Amendment; it is none of the IRS’s concern whether a Tea Party board member’s father served on his church’s board of deacons.

And, remember, these inquiries were not made after any allegation of wrongdoing—or part of any investigation of wrongdoing—but purely as a part of the IRS’s “routine” examination of conservatives.

How did we know these kinds of inquiries are illegal?

Because the Supreme Court had considered cases like this before—decades ago, when state governments were using similar tactics to suppress the civil rights movement.

In 1958, in NAACP v. Patterson, the state of Alabama challenged the right of the National Association for the Advancement of Colored People (NAACP) to operate in the state unless it disclosed certain information to the state, including its membership lists. The Court, in a short but forceful opinion, denied Alabama’s demand, noting:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.17

The Court went on:

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.18

In other words, when the government demands to know whom you meet with or work with when you’re engaging in political advocacy, that may deter you from joining groups. Would you be more or less likely to join a political organization if you knew that your name and address would be immediately transmitted to the government? Would you be more or less likely to join an advocacy organization if you knew that you’d even have to disclose the activities of your family members? It’s simple common sense that Americans want and demand a degree of privacy in their speech and activities. If we’re going to speak out, we want it to be on our own terms, not when and how the government tells us to.

So, when comparing the cases, it’s plain that the IRS’s recent demands of conservative groups went far beyond the state of Alabama’s request for the NAACP’s membership lists. After all, the compelled disclosures included probing questions about donors and even family members of group leaders—information that went even beyond the information the state of Alabama wrongly demanded from the NAACP.

Not only was the IRS’s request for information unlawful—it was also intimidating. Just as Alabama tried to intimidate the NAACP in the 1950s, President Obama’s IRS tried to intimidate conservatives throughout his first term and beyond. It is sad and ironic that

the Obama administration was using the old tools of segregationists against new political movements like the Tea Party.

At the ACLJ, we knew of Obama administration misconduct before Lois Lerner and the IRS issued their insincere confession and apology. In fact, in March 2012, we demanded answers, asking whether there was a “broad-based IRS assault on the Tea Party.” 19

In response, the IRS lied. Former IRS commissioner Douglas Shulman told Congress that the IRS prides itself on being nonpolitical, and that its scrutiny of conservative groups was typical.20

In reality, based on our clients’ experiences, it was clear the IRS conservative-targeting campaign was in full swing, was being con- ducted from IRS offices from coast to coast, and was discussed and monitored at the highest levels of the IRS.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ represents dozens of organizations that were unlawfully targeted by the IRS. Jay is a New York Times bestselling author. His latest book “UNDEMOCRATIC: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom” is available now. He hosts “Jay Sekulow Live”– a daily radio show which is broadcast on more than 850 stations nationwide as well as Sirius/XM satellite radio. Follow him on Twitter @JaySekulow.

Excerpt provided by Howard Books, an imprint of Simon & Schuster.

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