Thank You, Ms. Lerner, for Doing Your Job

The formula for polemical writing typically advises beginning with acknowledgments of the valid or at least arguable points of the other side. These acknowledgments are typically rather perfunctory, though well meant. But I really mean them: any targeting by the IRS of a group solely on the basis of political ideology, while giving a pass to groups with the opposite ideology, is wrong. Richard Nixon should not have done it when he sought to have the IRS target specific individuals known in his circle as his enemies list. The IRS should not have implied that the NAACP was treading on dangerous ground relative to its tax-exempt status in George W. Bush’s administration, nor should it have attempted to intimidate a church that had a speaker—not a church employee—advocating some political point not friendly to the Bush administration. The Nixon case had nothing to do with tax-exempt, non-profit status, unlike the Bush cases and now the Obama case.

I remember no particular outrage in either of the Bush cases. Now, however, we have a full-blown ersatz scandal, with both Republicans and Democrats preening in high dudgeon. But there are some specifics to this case that I have heard nowhere else other than from Lawrence O’Donnell’s show, The Last Word. These include: (a) the actual law states that organizations should be denied tax-exempt status unless their activities are “exclusively” devoted to “social welfare” and thus not even a little bit political; and (b) as early as 1959 the IRS essentially ignored the law Congress wrote and passed, and substituted the word primarily for Congress’s exclusively. That one change in wording means that organizations which claim that their primary purpose is social welfare, but which allow up to 49% of their purpose to be devoted to political advocacy, would be approved for tax-exempt status. But by the law, as actually written, the IRS could not approve their tax-exempt status since any political activity would bar that status being granted. So, by law, only an organization that is exclusively a social welfare organization—which is to say, an organization without any political action activity at all—can be granted tax-exempt status.

Democrat Carl Levin in 1994 inquired of the IRS about the use of these two mutually exclusive terms, exclusively and primarily. The IRS replied in a letter obtained by O’Donnell that the IRS interpreted the word exclusively to mean primarily. This is the point that should make us mad with the IRS—that somewhere, at least by 1959, it was violating the law by rendering one critical word in the law null and void, and all on its own substituting for that word another word that was totally incompatible with the word Congress wrote. The difference between exclusively and primarily is the difference between dog and cat or often and never—they are not exactly opposites, but they do not overlap since they each exclude the other. They are not subject to possible misinterpretation by being roughly synonymous like sometimes and occasionally. They mean very different things, and the IRS had no business changing the meaning of the law by changing those words. The IRS doesn’t tell us that we should “primarily” or generally not cheat on our taxes, but that we should “exclusively” or never cheat on our taxes. They would not be happy if we “primarily” didn’t cheat. God didn’t tell Adam and Eve to try not to eat the apple, or not to eat much of it, or not to eat it unless it looked like it was about to rot. He told them, quite unambiguously, Don’t eat the apple. There was no room for interpretation. When the IRS changed that one word, they committed their original sin.

So since the IRS should all along have been following the law and rejecting applications for non-profit, tax-exempt status for groups engaged in any political activity at all, it was actually right to be questioning or rejecting applications for groups with Tea Party in the name, just as it would have been right had it received applications from groups with Democratic Party, Republican Party, Communist Party or other groups who are obviously engaged in politics, and not just primarily, but exclusively. But even by the lesser standard of the word primarily, they should have been rejected, or at least questioned, since an organization which included in its name a well-known political group could reasonably be assumed to be primarily devoted to political activity rather than social welfare. What we don’t know is how many liberal groups with red flag words in their names were applying and, equally important, being accepted for tax-exempt status. We do know that many conservative groups were applying, but without knowing about the number of liberal groups applying and being approved, the notion of “targeting” is itself misplaced. And if the number applying is small, then the word targeting is simply wrong. You just can’t compare fifty to two. We don’t know the numbers, and we should know them before passing judgment. If, on the other hand, the fictitious Tea Party for American Progress and many similarly named groups were being stalled or rejected, while a roughly equal number of the equally fictitious Radical Leftists for Radical Change and other similarly named groups were not, then we have targeting. Either way, it is reasonable to infer orientation from such names. They tell us their purpose; we know what Tea Party means these days, just as we know what Occupy Wall Street means. When the name itself bespeaks political action, whether left or right, the IRS employees asking for more information before granting tax-exempt status were not stalling but doing their job. And their boss, Ms. Lerner, was apparently doing hers. Nor should we forget that many conservative Republicans would love to see the IRS dismantled, so it seems no huge stretch to conclude that many conservative groups took the opportunity to exploit the IRS misinterpretation of the law that allowed them to conduct political fund-raising and advocacy behind a charade of “primarily” social welfare fronts, all while mooning the very organization they loathe. By contrast, and presuming their applications were comparatively few in number, liberal groups were either too honest or too dumb to exploit that same misinterpretation.

So the IRS is guilty, but not of what it is currently being accused. It is guilty of changing the meaning of the law decades ago, and continuing to ignore the original meaning to this day with impunity. I have not heard a single legislator berate the IRS because of that. Why has no Congressman hurled thunderbolts at the IRS for unilaterally changing the law that Congress itself wrote and passed? That change has led us to this: judgment calls as to what is 49% political and what is 51% political. Returning to the law as written, with that unambiguous word exclusively, would get us away from that by eliminating from tax-exempt status any group doing any politics at all. In so doing, it probably would make most Americans happier knowing that the tax system is not effectively subsidizing numerous political groups whether of the left or the right.


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