IRS Scandal AGlenn Harlan Reynolds

With all the excitement over Syria last week — we went from “Assad is Hitler” to “we have achieved peace in our time” almost overnight! — you may have missed another big story. The IRS scandal, which has slumbered over the summer as Congress has been in recess, seems to be waking up.

It has now been over four months since the IRS admitted it was targeting conservative groups in the run-up to the 2012 election. The chief IRS official in charge of Exempt Organizations, Lois Lerner, has “taken the Fifth” — invoking her right against self-incrimination in order to avoid testifying before Congress on what went on. Nonetheless, President Obama — who himself “joked” about auditing his enemies — has lumped the IRS misconduct in with what he calls “phony scandals.”

But new emails have come out that make the IRS scandal look anything but phony. Emails recovered by the House Ways and Means Committee demonstrate that the targeting of Tea Party groups — and of voter-integrity groups — was orchestrated from the top of the agency. Rather than being conducted by a few rogue employees in the Cincinnati office of the IRS, the Tea Party targeting was regarded by Lerner as something “very dangerous” politically, and she observed that “Cincy should probably NOT have these cases.”

The emails also reveal Lerner’s concerns that the Democrats might lose their Senate majority, and her hopes that the Federal Election Commission might “save the day” by interfering with right-leaning grassroots activity. The IRS also shared information with the FEC, something not permitted by statute, raising questions about just how politicized both agencies were.

An editorial in Investor’s Business Daily observes:

“Like the Internet video the Benghazi terrorist attack was blamed on, the only thing phony about the IRS scandal is the administration’s cover story that a couple of rogue agents in the Cincinnati office concocted and executed this most blatant abuse of power by the most powerful and feared agency of government. Lerner’s email further blows out of the water that discredited fiction. It also confirms a suspected reason for the planned intimidation and hamstringing of conservative opposition to the Obama administration’s policies, saying that those Tea Party group applications for tax-exempt status could end up being the ‘vehicle to go to court’ to get more clarity on the 2010 Supreme Court ruling on campaign finance rules.”

That’s right, and that’s just another reason why we need to get to the bottom of the IRS scandal, which isn’t the least bit “phony.” It seems to me that there are two possible problems here. One is that this came from the Obama White House. The other is that the — overwhelmingly Democratic — career civil service at the IRS didn’t need White House instructions to go after Tea Party groups it saw as enemies.

The first possibility is bad enough, but is presumably remediable with stricter rules. The second possibility, however, calls into question the possibility of a nonpartisan career civil service, and certainly the possibility of fair administration for something as complex, and involving as many discretionary decisions, as the Internal Revenue Code. Worse yet, given that overwhelming partisan identification with Democrats pervades the civil service as a whole, it calls into question the very possibility of a nonpartisan and politically neutral civil service.

I’m not ready to call for a return to the “spoils system,” but the fully politicized federal bureaucracy of our nation’s first century or so did have two advantages: First, presidents couldn’t hide behind the bureaucracy, as they were presumed responsible for the actions of government bureaus staffed with their supporters; and second, politicians were less inclined to trust the bureaucracy with enormous and discretionary power when they knew that it would sometimes be staffed by their political adversaries.

At any rate, it all boils down to trust. One reason for the resonance of not only the IRS scandals but also the NSA scandal, the Benghazi scandal, Fast and Furious, and so on is that fewer Americans than ever trust the federal government. It’s a mess that needs to be cleaned up, and denying that the mess exists only exacerbates the lack of trust.

It’s doubtful that Eric Holder’s Justice Department — which is even more partisan and politicized than the IRS — will clean this mess up. Nor is Holder likely to appoint a special prosecutor. So it’s up to congressional investigators to get to the bottom of it. Stay tuned.

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Glenn Harlan Reynolds is professor of law at the University of Tennessee and the author of The New School: How the Information Age Will Save American Education from Itself. This article was published at USAToday

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