Undemocratic: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom (Part 4) – Guest Essayist: Jay Sekulow

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The IRS seems to be replacing “tax collection” with “oppression and censorship” as a key part of its agency mission statement.

And what about existing 501(c)(4)s, the organizations that made it through the IRS targeting and were granted exemptions?

Surprise, surprise: the IRS follow-up audits exclusively targeted conservative groups. Congressman Dave Camp, chairman of the powerful House Ways and Means Committee, said:

Additionally, we now know that the IRS targeted not only right-leaning applicants, but also right-leaning groups that were already operating as 501(c)(4)s. At Washington, DC’s direction, dozens of groups operating as 501(c)(4)s were flagged for IRS surveillance, including monitoring of the groups’ activities, websites and any other publicly available information. Of these groups, 83 percent were right-leaning. And of the groups the IRS selected for audit, 100 percent were right-leaning.30

So, in summary, Tea Party donors were 1,000 percent more likely to be audited, Mitt Romney’s largest donors faced their own IRS ordeals, prominent Christian groups like Franklin Graham’s Samaritan’s Purse faced “aggressive” IRS action, and 100 percent of 501(c)(4)s selected for follow-on audits were conservative.

But that’s not all, of course.

The IRS Targets a Conservative Senator

In December 2012, Lois Lerner took a break from targeting Tea Party groups to suggest a different target, Iowa Republican senator Chuck Grassley.31

Lois Lerner and Senator Grassley were apparently invited to speak at the same event, and their invitations were swapped, with Lerner receiving Senator Grassley’s. The senator’s invitation indicated that the group hosting the event was apparently offering to pay the senator’s wife to attend, and Lerner pounced, suggesting this was improper and that the IRS “refer to exam.”

Fortunately, cooler heads prevailed, and a highly inappropriate audit was avoided, but some context is required.

When Lerner targeted Senator Grassley, the target was hardly random. Senator Grassley had long monitored the IRS Exempt Organizations Division. He was doing what legislators should do, investigating whether the IRS was doing its job:

This isn’t random, said Dean Zerbe, a tax lawyer who helped Grassley investigate tax-exempt groups and reform the law governing them. “This is going after the senator most active in conducting serious reviews of charitable organizations as well as the IRS work in this area.”

And:

Grassley was also one of a dozen senators who sent a letter to the IRS in March 2012 questioning whether Tea Party groups seeking tax-exempt status were being unfairly scrutinized.32

In other words, Grassley didn’t view the IRS as his ideological partner, but rather as a federal agency that required oversight. This, apparently, made him an enemy of the IRS, one subject to audit at Lois Lerner’s whim.

But that’s not all, of course.

The IRS Loves Planned Parenthood and Hates the Pro-Life Movement

In 2009, the Coalition for Life of Iowa, a small pro-life group, sought IRS approval for a tax exemption under Section 501(c)(3) of the tax code.

And what was the IRS’s response?

It wanted the group to promise that it wouldn’t protest or picket Planned Parenthood, the nation’s largest abortion provider.33 Here’s the congressional testimony of Susan Martinek, the group’s president:

In June of 2009, Ms. Richards (no first name given) told me verbally that we needed to send in a letter with the entire board’s signatures stating that under penalty of perjury we would not picket/protest or organize groups to picket/ protest outside of Planned Parenthood,” Martinek said. “Upon receiving such a letter, she indicated that the IRS would allow our application to go through.” 34

But that wasn’t all. The IRS was concerned with much more than Planned Parenthood picketing, and—pulling a page from Lois Lerner’s playbook when she investigated the Christian Coalition— demanded details of the Iowa Coalition for Life’s prayer activities. Again, here’s Martinek’s testimony:

On June 22, 2009, IRS Agent Richards sent us additional written requests, as follows: “Please explain how all of your activities, including the prayer meetings held outside of Planned Parenthood are considered educational as defined under 501(c)(3). Organizations exempt under 501(c)(3) may present opinions with scientific or medical facts. Please explain in detail the activities at the prayer meetings. Also, please provide the percentage of time your organization spends on prayer groups as compared with the other activities of the organization. Please explain in detail the signs that are being held up outside of Planned Parenthood and explain how they are considered educational.” 35

These are extraordinarily intrusive inquiries, with an astounding level of detail demanded about “prayer meetings,” and an extraordinary level of protectiveness toward Planned Parenthood. Why is the IRS concerned only about signs held up outside Planned Parenthood? If it’s truly concerned about the group’s educational purpose, the signs about Planned Parenthood are no more or less relevant than the signs the group uses elsewhere.

Yet the Iowa Coalition for Life’s ordeal was not unique. The IRS also targeted AMEN (short for “Abortion Must End Now”), an Arizona pro-life nonprofit, under Internal Revenue Procedure 86-43, an unconstitutionally vague procedure that allows biased IRS agents to subjectively determine whether an organization’s educational materials are excessively “inflammatory” or “disparaging” or overly “emotional.” 36

In this case, the IRS targeted not just AMEN’s pro-life materials, but also the name of the organization itself. Given the stunning level of vitriol and emotionalism that routinely pours forth from pro-abortion organizations, targeting a small pro-life group on these grounds was not only the height of irony, it was also unconstitutional viewpoint discrimination.

These attacks, where the IRS put its thumb on the scales of abortion—perhaps the most critical cultural, religious, and political argument of our time—demonstrates once again that employees of the IRS are less interested in impartial enforcement of tax laws than in using these tax laws to reward ideological friends and to punish ideological (and religious) foes.

But that’s not all, of course.

The IRS Agrees to Monitor Free Speech in Churches

On July 21, 2014, the Freedom from Religion Foundation announced that it had reached a settlement with the IRS in response to a lawsuit filed in 2012. And what were the terms of the settlement? 37

The IRS agreed to “monitor churches and other houses of worship for electioneering.” (Electioneering is another word for taking an active part in a political campaign.)

In other words, the IRS—while under congressional investigation for its massive campaign of targeting, intimidation, and harassment of conservative groups—was at the same time agreeing with radical atheist organization that it would step up its investigations of free speech in churches and other tax-exempt organizations.

The IRS—while fighting tooth and nail our ACLJ lawsuit brought on behalf of conservative and pro-life groups the IRS targeted—was agreeing with arguably the nation’s most litigious atheists that it wasn’t doing enough to keep Christians in line, that it needed to expose churches to even greater scrutiny.

It is well-known that churches and other nonprofits (which are typically 501(c)(3) organizations) cannot—consistent with IRS rules—officially endorse candidates. This is a relatively modest limitation on free speech that comes along with a tax exemption, but even that relatively modest limit has suspect origins—dating back to Lyndon Johnson’s attempts to prevent churches from mobilizing opposition to his early political career.

Prior to the so-called Johnson Amendment, churches enjoyed the full range of free speech rights.

But the Freedom from Religion Foundation wants even more restrictions on religious speech, employing a very broad interpretation of IRS restrictions on political engagement that would essentially mean that religious officials not only couldn’t endorse candidates, they couldn’t even discuss key political issues from a biblical perspective from the pulpit, in Sunday school, on church websites, or through any other church resource.

Groups like the Freedom from Religion Foundation have advocated this view for so long that many churches and pastors are reluctant to discuss even the most basic of moral issues from the pulpit if they have political overtones. Let’s take the fight for life, for ex- ample. Many Christians mistakenly believe that discussion of abortion from the pulpit is inherently “political” and thus unlawful. In reality, however, abortion is a moral issue, not just a political issue, and sharing a biblical perspective on that moral issue—and sharing truthful information about where individuals stand on life—is constitutionally protected speech.

But now that the IRS is required to “monitor” churches, temples, and houses of worship, will these institutions feel more or less free?

Should they trust the IRS to know the law and apply the law fairly?

And how, exactly, will it “monitor” them? By applying the same methods it applied to the Tea Party?

Once the congressional spotlight has shifted from the IRS scandals and the IRS once again feels a degree of freedom of action, I have little doubt that houses of worship will soon start to feel the presence of the tax man, through audits, investigations, subpoenas, and other forms of extraordinary scrutiny.

The IRS seems to be replacing “tax collection” with “oppression and censorship” as a key part of its agency mission statement.

But that’s not all, of course.

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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