In Summary

by Dave Schuler on June 24, 2014

Embedded in a column full of invective and excess verbiage, Michael Gerson provides a pretty fair description of the IRS scandal:

To review: After President Obama blamed “two Dilberts in Cincinnati,” an inspector general’s report found that high-level IRS officials in Washington were involved in directing additional scrutiny toward tea party groups seeking tax exemptions. Lerner admitted as much, before taking the Fifth Amendment to avoid testifying before the House oversight committee. The House of Representatives held her in contempt. And now the evidence of possible communications between Lerner and other agencies (including the White House) has gone missing under suspicious circumstances. It could be a regrettable series of rogue operations, IRS management failures and technical glitches. Or they could be taking us for fools.

It seems to me that there are at least four competing reactions to the problem:

  1. The White House is behind all of this and should be investigated hammer and tongs until Barack Obama is out of office.
  2. There’s an actual scandal here that’s worthy of better investigation than the House is likely to do.
  3. Nothing to see here, move along.
  4. What difference at this point does it make?

I think that #1 is unlikely but it seems to be the tack that partisan Republicans are taking. #2 is my position. #3 seems to be the tack that partisan Democrats are clinging to, a task that becomes more difficult with the passage of time. #4 could be attached to just about every story that comes out of Washington these days.

{ 71 comments… read them below or add one }

steve June 25, 2014 at 10:26 pm

…- Please try to say with a straight face that you believe those were social welfare groups and not political ones. Also, try reading. I said what she did was not legal. There should be an investigation. Then a really harsh punishment fitting the crime if she is guilty. Maybe 90 days of community service.

Steve

CStanley June 25, 2014 at 10:54 pm

@steve-
Personally I don’t think it’s credible that any of these groups, right or left, are social welfare groups. But it’s up to the legislative branch to fix that by reforming the tax code. It’s inconceivable to me that anyone is arguing that the bureaucrats in the executive branch were right to have sprung into action just because the president’s opponents were finding an advantage in the existing tax structure.

Dave Schuler June 26, 2014 at 7:09 am

Based on the discussion above, it appears to me that many of the objections are about the law which I won’t disagree with. However, given the law the IRS had moral and legal obligations to apply the law in an even-handed and content-neutral way which it has already been determined was not the case.

The remaining questions are whether there was intent or a conspiracy not whether the IRS acted wrongly. That intent can be inferred from a pattern of action is a conventional prinicple of law.

Zachriel June 26, 2014 at 7:32 am

: So, then, you are contradicting yourself and you DO believe that the law should be enforced unequally.

No. The law should be applied equally. That means you apply the law to those who cross the line. They need to use neutral criteria, however.

By the way, do you think that the primary purpose of the flood of money into Tea Party groups was non-political?

TastyBits: You need to understand the subject matter before you attempt to school me.

You still can’t seem to form a coherent argument. Is it a secret? Should we ask your neighbors?

PD Shaw: Is this position being taken officially, or being urged by someone citing to the law? Because it sounds ludicrous on its face.

IRS records are required to be printed and filed. As no one printed every email (who left the month-old lasagna in the fidge?), that suggests they didn’t consider them records for the purposes of the Act. This should be changed, of course.
http://www.washingtonpost.com/blogs/erik-wemple/wp/2014/06/25/daily-show-goes-long-on-irs-incompetence/

CStanley: how stupid would we have to be to believe that a policy of allowing each employee to decide which documents to preserve and which to destroy, would be acceptable practice?

Right up there!

jan: Why can’t people just drop the party affiliation and simply assess all these controversies in an honest, non-partisan manner.

That would be a good idea.

jan: Now, why is it that the IRS is somehow exempt from it’s own demands from others?

They shouldn’t be.

jan: What do you think the WH has done with the tons of taxpayer money that has slipped through their fingers though their incompetent administration of other people’s money, as the economy continues to stagnate!

Heh. You just called for a non-partisan manner, then jumped to a completely different topic because it fit your partisan narrative.

Zachriel June 26, 2014 at 8:13 am

: So, then, you are contradicting yourself and you DO believe that the law should be enforced unequally.

Not at all. Everyone deserves equal protection under the law, and neutral criteria should be used.

By the way, do you think the surge of money into Tea Party groups was primarily for non-political purposes?

Zachriel June 26, 2014 at 8:14 am

TastyBits: You need to understand the subject matter before you attempt to school me.

Still not a coherent argument.

Zachriel June 26, 2014 at 8:16 am

PD Shaw: Is this position being taken officially, or being urged by someone citing to the law? Because it sounds ludicrous on its face.

The IRS policy was to print any official records. As most emails were never printed (Who put the month-old lasagna in the fridge?), it implies they weren’t considered records under the Act. This policy should be changed, of course.
http://www.washingtonpost.com/blogs/erik-wemple/wp/2014/06/25/daily-show-goes-long-on-irs-incompetence/

Zachriel June 26, 2014 at 8:17 am

CStanley: how stupid would we have to be to believe that a policy of allowing each employee to decide which documents to preserve and which to destroy, would be acceptable practice?

Very.

Zachriel June 26, 2014 at 8:19 am

jan: Why can’t people just drop the party affiliation and simply assess all these controversies in an honest, non-partisan manner.

That would be a good idea.

jan: Now, why is it that the IRS is somehow exempt from it’s own demands from others?

They shouldn’t be.

jan: What do you think the WH has done with the tons of taxpayer money that has slipped through their fingers though their incompetent administration of other people’s money, as the economy continues to stagnate!

Said just after calling for a “non-partisan manner”.

Zachriel June 26, 2014 at 8:20 am

Oops. The previous post didn’t show for some reason, then it did. Sorry for the duplication.

Modulo Myself June 26, 2014 at 8:28 am

Based on the discussion above, it appears to me that many of the objections are about the law which I won’t disagree with. However, given the law the IRS had moral and legal obligations to apply the law in an even-handed and content-neutral way which it has already been determined was not the case.

The remaining questions are whether there was intent or a conspiracy not whether the IRS acted wrongly. That intent can be inferred from a pattern of action is a conventional prinicple of law.

I think we all agree that the IRS acted wrongly. A group with a name like Wichita Tea Party for the Destruction of the Tyrant Obama should have been treated exactly like Americans for Environmental Progress. They were not–the IRS screened the names. But there’s no evidence that they treated the Wichita Tea Party for the Destruction of the Tyrant Obama differently than they would have had they examined the group fully before dropping them into the pending or hold category.

And then what happened? The groups were asked questions by the IRS. They were allowed to raise money and act pending the end of the review. And then they were cleared.

So the pattern is that of an aged bureaucracy, hit with something new and an onslaught of applications for this new category, reacting in an unsurprising way and doing very little, in the end, to inhibit these groups.

It’s important to note that what brought this whole scandal was the Tea Party didn’t like being asked questions by the IRS. These groups applied for 501(c)(4), operating apparently under the assumption that they did not have to show they were acting for social welfare. People in the Tea Party were honestly angry that someone in the IRS believed it possible they were forming to get rid of Obama. They were terribly unsophisticated people who somehow ended up trying to get a legal classification built by Washington lobbyists.

Dave Schuler June 26, 2014 at 8:38 am

I agree with practically all of that comment, Module Myself, except for this:

And then what happened? The groups were asked questions by the IRS. They were allowed to raise money and act pending the end of the review. And then they were cleared.

That may have happened in some cases. In others it was more like The Trial. The groups were asked for more and more information, some of which the IRS was not empowered to demand. In some cases approval was delayed for, quite literally, years. Some were still pending years later.

To the best of my knowledge although some notionally left-leaning groups were subjected to additional scrutiny not one was subject to that level of scrutiny. If you can identify one and document its case history, that would be handy.

PD Shaw June 26, 2014 at 9:00 am

@steve, I believe these were social welfare organizations involved in public advocacy.

@Zachriel, thanks for the response. I guess I wouldn’t accept the idea that a statute would be interpreted by a practice of violating it. But I think your point is rather that it was a general practice not special to Lerner’s e-mails.

PD Shaw June 26, 2014 at 9:18 am

MM: The treatment was inconsistent between grass-roots and sophisticated groups like Karl Rove’s. Most 501(c)(4)s are grass-roots organizations, set up by non-lawyer members using forms they’ve downloaded. The sophisticated groups sail through, and the grass-roots get clobbered with interrogatories, which either scare the hell out of them or send them to a lawyer, whose never seen anything like it before. I think your assumption that it was no big deal, breaks down between how sophisticates and virgins would react.

Small point: These groups were allowed to raise money without filing or seeking a 501(c)(4).

Modulo Myself June 26, 2014 at 9:19 am

To the best of my knowledge although some notionally left-leaning groups were subjected to additional scrutiny not one was subject to that level of scrutiny. If you can identify one and document its case history, that would be handy.

Well, the Tea Party people did not just wake up and find themselves having to argue their case. They applied for a tax category created for nebulous purposes, and then, honestly, seemed to lack the sophistication and competence to perform their role properly, or even to grasp that they were acting in a role. There was a NYT’s article about a group that had paid for radio advertising for a candidate but not television or print and somehow thought this was okay.

Joseph K. was doomed, no matter he did, but he did not really get his role as the accused. I always feel that Kafka is not Orwell, so he does not expect you to be totally sympathetic with the plight of his heroes. He makes you feel embarrassed for their stupidity, even as they blunder in full innocence.

Similarly, I would suggest that the IRS did not get their role. They screwed up by not grasping that outside of Washington and the nice progressives who have experience and some sort of awareness, a huge section of this country lives in a state of passive-aggressive fury that would not be wished upon anyone. It’s like dealing with insane relatives, basically. Should there be separate laws and procedures? Perhaps that should be looked into, just so people like TastyBits and Jan can feel they get their money’s worth in America.

Zachriel June 26, 2014 at 9:21 am

PD Shaw: I guess I wouldn’t accept the idea that a statute would be interpreted by a practice of violating it.

IRS Commissioner John Koskinen: “In discussing document retention at the IRS, it is important to point out that our email system is not being used as an electronic record keeping system. Furthermore, it should be remembered that not all emails on IRS servers or backup tapes qualify as an “official record,” which is defined (in 44 U.S.C. 3301) as any documentary material made or received by an agency under federal law or in connection with the transaction of public business and appropriate for preservation. Accordingly, our agency’s email system is not designed to preserve email. Rather, email that qualifies as “records” are printed and retained in compliance with relevant records control schedules. Individual employees are responsible for ensuring that any email in their possession that qualifies as a “record” is retained in accordance with the requirements in the Internal Revenue Manual and Document 12990 (Record Control Schedules).”

However, as you point out, this policy is probably not an accurate interpretation of the law, and should be changed.

44 U.S. Code § 3301 – Definition of records: “s used in this chapter, “records” includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.”

Modulo Myself June 26, 2014 at 9:28 am

The sophisticated groups sail through, and the grass-roots get clobbered with interrogatories, which either scare the hell out of them or send them to a lawyer, whose never seen anything like it before.

But it’s not like setting up a corporation or filing income tax. It’s no big deal in that none of this was necessary. The reward for sailing through was that you could operate as a partisan group while being on paper something else. It was all farce. Yes, the IRS should have had better procedures in place. Maybe they should have grasped that it was a farce, and let these groups through, because we live in a democracy, and the little fish are entitled to the same as the big fish. I don’t know. Try telling your accountant this, and see what he or she says. My experience is that accountants are amongst the least likely to have professional irony.

PD Shaw June 26, 2014 at 10:12 am

@Zachriel, again thank you. That’s probably more than I have time to chew on, but there appear to be three concepts being discussed: what records are required to be kept; what archiving/backup system is used; and what are the technical limitations of the technology being employed.

I should add that my expectations aren’t based upon a policy of preventing agency members from destroying evidence of corruption, but agencies generally prefer outside communications to go through approved channels.

TastyBits June 26, 2014 at 12:28 pm

@Zachriel(s)

If you are arguing that your lack of knowledge of backup systems is no impediment to your commenting upon the complexity of restoring a backup image, then you are trifling and stupid.

Lacking knowledge of the subject, you attempt to change the subject. Typical.

Cstanley June 26, 2014 at 1:02 pm

One of the most disturbing trends that I see exposed as this scandal unfolds is a kind of corruption creep.

Some liberals have compared the loss of IRS emails to more or less similar instances that occurred with White House emails under the Bush administration. For the purpose of this discussion, assume that is a valid comparison. So, when it became apparent that new rules might be needed to secure “paper trails” in government of the digital age, Democrats and Republicans sprung into action to explore the problem and craft solutions, right?

Wait, what’s that you say? Nothing was done, and no one even raised the issue again until now when the previous example is used only to deflect from the current problem? Why, you’d almost think that the politicians of both parties wanted it that way. That couldn’t be, though…look how outraged everyone is!

steve June 26, 2014 at 8:00 pm

Cstanley- Could be, but I think it more likely that government email systems, govt IT in general, sucks.

PD- Wanna buy a bridge?

Steve

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