The Real Danger of the IRS, DOJ ‘Scandals’


IRS_Building_WideThe IRS and DOJ scandals are already old news, but everyone seems to misunderstand their significance.

The machinations of the IRS went something like this: Sometime last year, several middle to low level workers at the Cleveland, Ohio office of the Internal Revenue Service started taking special interest in conservative political groups applying for tax exempt status. They looked for organizations with the words "Tea Party" or "Patriot" or "the Constitution" and, as the New York Times reported, sent them--and, it appears, them alone--detailed questionnaires to probe their political leanings, affiliations, and plans. 

At the same time, the DOJ was investigating national security leaks to reporters. As part of that investigation, it sent a subpoena (or subpoenas) to phone companies to seize the records of at least 20 phone lines used by the Associated Press and several others at FOX News. The AP called the actions "overzealous" and "unconstitutional;" others went further, calling the DOJ's behavior part of a "pattern of cover-ups."

Republicans and conservatives are positively giddy at the apparent opportunity to tie the President to these "scandals," hoping to claim some skin in the game, or at least a political victory. But there is no evidence that the President knew. In fact, there is every evidence that these decisions were made at lower administrative levels and were kept out of the President's world.

That means that these "scandals" -- not to mention the Benghazi tragedy -- don't have legs in the traditional sense, like Watergate or even the Monica Lewinsky affair. They are not about what the President knew and when. They don't involve the President, or anyone close to him, lying. Nor are they about some sinister Administration plot to target enemies.

But they may damage the Administration, the Democratic Party, and modern progressivism in a more subtle way.

To see how, continue AFTER THE JUMP...

Bos_obamaThe Obama Administration stands for many things. To the gay community and many other minority groups, it stands for equality and the realization of the American dream of inclusion. On a slightly broader scale, the President has been making one other major argument against his conservative Republican and Tea Party opponents: that the national government can be used to solve national problems. Government can be smaller, it need not be bloated, and it doesn't require a huge military-industrial complex. But government can solve problems, like immigration injustices, financial instability, health care, and so on.

For that argument to work, government has to function properly. Consider, for example, the mechanisms set up by the Affordable Care Act, colloquially known as Obamacare. It sets up health care plan exchanges and hands out subsidies to low-income individuals and includes a system of oversight. The Dodd-Frank regulations of Wall Street, which are supposed to prevent another financial collapse, set out basic guidelines and requirements, but like Obamacare, leave much regulation-writing to the administrative agencies tasked with enforcing the laws.

There's nothing inherently wrong with that; that's often how regulation works: Congress sets out the goals, administrative agencies dig into the details. But when those administrative agencies step out of bounds, we cannot help but question the "good" part of good government.

For those of us who join the President and believe that good, efficient government can help solve large social problems, government failures, even when not part of some sinister plot, are dents in the armor. They remind us what can happen when we set up independently functioning and large bureaucracies that can run amok in a proto-Kafkaesque manner. They give anti-government libertarians goose bumps and challenge the theme that President Obama has been using since his election to the United States Senate from Illinois: that government works.

Government can work. The IRS doing its job inartfully and the DOJ investigating leaks by going after journalists is not the beginning, middle, or end of Kafka's senseless bureaucracy taking control of our lives. Radical libertarians and politically opportunistic conservatives fall victim to paranoia, at worst, or the slippery slope fallacy, at best, when they state otherwise. The response to these "scandals" is not to give up on government, but to fix it. 

We can make government regulations simpler, which was one of the President's goals when he came into office in 2008.

We can tighten up the tax exempt status provision that appears to allow highly politicized groups to enjoy benefits intended for non-political, social welfare organizations. 

We can reform the tax system in a so-called "grand bargain" that has seemed beyond the reach of an intractable Republican House.

We can do a lot of things. What do you think we can do to solve this problem?


Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.