Fox News is helping American Center for Law and Justice's chief counsel Jay Sekulow baselessly accuse the Obama administration of continuing to use inappropriate screening to scrutinize nonprofit groups even after Obama condemned that practice. Sekulow's Fox-fueled campaign comes as legal experts say the IRS must continue assessing whether groups are eligible for nonprofit status.
A recent Inspector General report found that one of the IRS offices responsible for approving nonprofit status was targeting conservative groups. Following the report, President Obama condemned the actions of the office as "intolerable and inexcusable" and called for those responsible to be held accountable. Acting IRS commissioner Steven Miller was fired as a result of the improper scrutiny, and Attorney General Eric Holder ordered a criminal investigation.
Fox hosted Sekulow to discuss the controversy. During the segment, Sekulow complained that, despite the investigation, the IRS was continuing to apply heavy scrutiny to conservative groups that he represents in court. Sekulow cited an eight-page compliance letter that an unnamed nonprofit received that contained "intrusive questions," calling the IRS' actions "harassment":
But although one office of the IRS improperly delayed the nonprofit status of some groups, Sekulow provided no evidence that the groups he represents were targets of the same tactics. While the Inspector General's report criticized the actions of that office, it did not call for an end to scrutiny on groups applying for nonprofit status, and legal experts have pointed out that the investigation should be used as a reason to draw down the review process on those groups.
In the Huffington Post, Jessica Levinson, editor of Loyola University Law School's PoLawTics blog, pointed out that "the problem isn't that the IRS asked for too much information from organizations seeking favorable tax treatment, it is that they only asked for that information from conservative organizations":
[O]nce an organization obtains non-profit status under section 501c4 of the IRS code, any political fundraising by that organization is essentially clothed in secrecy. This is a perilous state of affairs. When organizations "speak" to us by spending money to try to influence whom we chose to represent us in our government, then we the people have an important interest in knowing the identities, the true identities, behind those attempting to persuade us.
In addition, it remains to be seen whether many of these organizations, purportedly dedicated to social welfare, are little more than political committees. Karl Rove's Crossroads GPS comes to mind as but one example. If it looks like a political committee, and it raises and spends like a political committee, then it just might be a political committee. One of the differences between political committees and 501c4s is, of course, that political committees must disclose their donors.
Other legal experts have echoed similar concerns. Thomas Kelley, a professor at the University of North Carolina School of Law noted that "it should not be forgotten that it seems fairly clear that many of the c4s are in fact breaking the law, and that, after Citizens' United, many organizations are using c4s to engage in campaign activity while hiding their donors' identities." In a Roll Call op-ed, Loyola Law School professor Ellen Aprill wrote:
IRS employees who review applications for exemption have a duty to ask follow-up questions of applicants, including groups affiliated with the tea party. In the current controversy, IRS reviewers wrongly singled out conservative groups for unusually exacting follow-up. In a number of these cases, they also asked inappropriate questions, such as the identity of donors.
Some media reports, however, imply that the IRS cannot and should not ask any questions of applicants for exemption, that any inquiry invades privacy and violates the First Amendment. That implication is wrong. An organization that seeks an IRS acknowledgment of its exempt status subjects itself to scrutiny -- scrutiny designed to ensure that the group in fact qualifies for the benefit of tax exemption.
UPDATE: On the Washington Post's Wonkblog, Ezra Klein, who appeared on MSNBC's Morning Joe with Sekulow, wrote that Sekulow is "confusing what the IRS scandal is about," noting that the "scandal is about targeting conservatives, not scrutinizing 501(c)(4)s":
Here's what Sekulow is saying: Tea party groups received questions about their political activities that originated from a variety of different IRS offices, not just Cincinnati. That's not necessarily a problem and it's not even new information.
It was proper that the tea party groups received heavy scrutiny. As the New York Times has firmly established, many of them were primarily political groups that potentially didn't qualify for 501(c)(4) status.
Sekulow is trying to widen the scandal by changing the premise: He's arguing that the real problem here was the actual questioning of tea party groups applying for 501(c)(4) status, and so anyone who participated in the work of trying to follow up on the applications chosen for extra scrutiny did something wrong. That gets this backwards: The problem wasn't that the IRS closely scrutinized questionable applications from tea party groups. It's that they didn't closely scrutinized the applications from other questionable groups as well. The scrutiny was the part they did right. The targeting was the part they did wrong.