You dont have to be a member of the tea party to be outraged over the Internal Revenue Services special and unwarranted scrutiny of conservative groups. Im not, and I am.
For four decades liberals have nursed hurts over the Nixon administrations use of the IRS to intimidate if not punish its political opponents. The very first item in Article II of the House Judiciary Committee resolution impeaching Nixon speaks of violating the constitutional rights of citizens and the improper examination of confidential information contained in income tax returns.
One thing a second-term president wants to avoid is appearing in the same sentence with the word Nixon, and so the IRS forays during the Obama years, combined with the disclosure that the Justice Department obtained phone records of Associated Press reporters and editors, puts the current administration in unusual peril. Yes, the Nixon comparisons are superficial, and no, history never repeats itself, but yes, last week was a very bad one for President Barack Obama and portends rough weather ahead.
But these twin incursions into well-established rights — violations of the trust and sense of fair-mindedness that government requires, even if politics does not — underline two principles that should be sacred, whether the president is a Republican or a Democrat, whether the timbre of the times is conservative or liberal:
Never mess with the work of an independent press. Never use the taxing authority of the government for political ends.
No two institutions of American governance are more precious and deserving of caution from officials who — and here Republicans and Democrats are equally vulnerable to sin — believe they have reason to deplore the one and abuse the other.
For generations Americans have been served by an independent press, which is one of the political and cultural distinctions of our civic life. And the entire functioning of our government requires that the power to tax — which both Daniel Webster and John Marshall equated in 1819 with the power to destroy — be deployed with antiseptic fairness.
So there are two scandals here, and all Americans should be concerned about them both. But there is a third scandal unearthed by last weeks events, and it comes under the familiar dictum, often attributed to fellow columnist Michael Kinsley, that scandal usually isnt about whats illegal, but what is legal.
Here is what is legal and at the heart of this months contretemps: It is legal for 501(c)(4) organizations — conservative groups, such as the various permutations of the tea party, as well as many liberal groups, such as Priorities USA — to have tax exemptions under the claim that they are primarily involved in the promotion of social welfare. This is not a new issue in Washington. More than nine months ago, 10 Republican senators, including some regarded by Democrats as among the most open-minded and even-handed of their rivals, contacted Douglas H. Shulman, then-IRS commissioner, to express concern that political factors were affecting the agencys activities.
Nine years ago the American Bar Association created a task force to examine this question and found there was no statutory basis for the principle that social welfare does not include political intervention. Indeed, in 1990 — smack in the middle of a Republican administration — the director of the IRS Exempt Organizations Technical Division told a conference (and you can imagine what a lively, fun-packed convention this was):
When it comes to political activities — that is, giving money to a candidate, telling people to vote for a certain candidate — the rule is that it has to be less than primary. If its 49 percent of their income, that is less than primary.
Thats the principle guiding the use of all that principal. But its not a good one, as it allows all sorts of groups to raise enormous amounts of money and then devote 49 percent of it to political purposes without tax exposure. Some estimates put the advertising expenditure by these tax-exempt groups at more than half a billion dollars.
Last week an unusual breeze of fairness blew through the capital, often from unlikely sources. Consider these remarks from Senate Majority Leader Harry Reid of Nevada:
There are these shadowy political groups masquerading as social welfare organizations in order to solicit anonymous donations from we dont know who — big corporations and also wealthy people. That needs to stop. We do not know exactly how much money was spent in the last election by these groups, and I acknowledge most of the money was spent on the right wing, but there was plenty on the left wing.
Here is the scary thing: USA Today reports that the IRS approved nonprofit status for liberal groups at the same time it was denying that status for conservative groups. Rhetoricians at the University of Pittsburgh and Jesus College, Cambridge, have developed a theory of keywords, and it doesnt take a Pitt or Cambridge degree to ascertain the political leanings of a group with a name such as Missourians Organizing for Reform and Empowerment, which received tax-exempt status at the time when tea party groups employing words such as patriot did not.
None of this is good for the Obama administration, which otherwise would have had something big to crow about last week. Revised nonpartisan Congressional Budget Office figures put the federal budget deficit at $642 billion. But that wasnt the predominant discussion of the week. Instead, the talk was of how the administration breached some of the most sacred lines in American life. First Amendment purists are right that attacking press prerogatives is an attack on American values. And maybe conservatives are right about taxes, because the type of flat tax they espouse could help take the IRS out of politics and make all of these exemptions meaningless.
(David M. Shribman is executive editor of the Post-Gazette (firstname.lastname@example.org, 412 263-1890). Follow him on Twitter at ShribmanPG.)