The revelations of the scandals within the Obama administration in the past couple of weeks make those of us who are old enough recall 1973, when Bob Woodward and Carl Bernstein’s investigative reporting and then the hearings of a special Senate investigative committee brought to the public one astounding detail after another about Watergate. The current developments have been even more striking.
One scandal or possible scandal after another, reaching across different executive branch agencies, have come to light in breathtakingly brief succession. There has been the apparent cover-up about the Benghazi episode, the Justice Department’s open-ended seizure of phone records from a wide array of Associated Press offices (including one in the U.S. Capitol Building), the disclosure of apparently politically-motivated decisions and actions by the IRS, the seeming policy of the EPA of waiving fees and fines on the basis of groups’ political views, the reports that HHS Secretary Sebelius has been contacting companies—including possibly those regulated by her department—to solicit funds to help implement Obamacare, and accusations of sexual assault against military men in two branches of the armed forces whose jobs were to prevent sexual assaults.
Of all these possible or acknowledged scandals, however, especially troubling for most Americans is the one involving the IRS—if for no other reasons than that its sights can easily be turned on them. The IRS has admitted to singling out Tea Party and other conservative groups that were applying for tax-exempt status under Section 501 (c) (4) of the Internal Revenue Code. It delayed their applications—sometimes for years—and made excessive and irrelevant inquiries. It often flagged organizations just because they used terms such as “patriot” or “limited government” to refer to themselves and their work. Sometimes it asked for donor or even membership lists (this directly violates the standing U.S. Supreme Court precedent of NAACP v. Alabama ), which held that such membership queries violated the freedom of association implicitly protected by the First Amendment. At the same time, leftist groups got a pass. Such disparate treatment flies in the face of another long-established constitutional doctrine, in which the Court has forbade viewpoint discrimination under the First Amendment free speech clause.
The IRS apparently also leaked confidential information, a violation of federal law. It appears that they provided information about pending 501 (c) (4) applications by conservative groups to ProPublica, a leftist media organization. During the 2008 campaign for the anti-same-sex “marriage” Proposition 8 in California, it also appears that the IRS leaked confidential information about the National Organization for Marriage’s donors to its adversary, the pro-homosexualist Human Rights Campaign. The head of the HRC was Obama’s 2008 campaign co-chairman. NOM plans to sue the IRS over this.
There have also been revelations that the IRS made as a condition of a favorable ruling for tax-exempt status for a pro-life group that it not actively protest at Planned Parenthood facilities. Another pro-life group—a Christian organization—was closely scrutinized for involvement in the annual “Life Chain” and prayer vigils and was probed about the viewpoint content of its educational materials. The Thomas More Society, a national public interest law firm, has taken up their cases. The one involves an attempt to stop constitutionally-protected peaceful picketing, and the other more unconstitutional viewpoint-based discrimination and a threat to the freedom of assembly.
Perhaps most troubling is the situation of Dr. Anne Hendershott, my colleague on the Franciscan University of Steubenville faculty and the Society of Catholic Social Scientists Board of Directors. Dr. Hendershott is one of the leading Catholic sociologists in the U.S. When the current IRS scandals broke, she decided to go public about the questionable audit she was subjected to in 2010, apparently because she wrote articles that questioned the true Catholic character of two well-known sister non-profit organizations, Catholics in Alliance for the Common Good and Catholics United; exposed the funding sources from these organizations (which included George Soros’ Open Society Institute and a major Democratic party fundraiser); and her raising tax questions about the leftist activist leader of these organizations. She had also written a series of articles critical of Obamacare. According to reports—I have not communicated with Dr. Hendershott about the matter—she was called into the IRS’s New Haven office for an audit of her “business” affairs connected with her writing. She said that at the audit session she was asked about who paid her for writing the articles and what their political viewpoint was. The effect of the audit was that Dr. Hendershott stopped writing about these topics.
This is the very essence of “chilling effect.” The Supreme Court has consistently held that government cannot act in such a manner that it will have a “chilling effect” on speech so that people will be fearful of expressing their opinions. Moreover, the fact that Dr. Hendershott’s criticism was partly questioning whether these organizations were correct in understanding and interpreting Catholic social teaching adds another possible constitutional dimension to this. Did the IRS violate both the establishment and the free exercise clauses of the First Amendment? Did it effectively make an official governmental judgment about correct Catholic doctrine relating to certain public questions, and then called Dr. Hendershott to task for criticizing the positions of these left-tilting Catholic organizations?
It is not an overreaction to say that these IRS scandals sound like official favoritism of certain organizations and political viewpoints and an attempt to suppress opposition. The question of undue political influence also presents itself. For example, did the people who were prominent in the Obama campaign and the Democratic party go to contacts in the administration or in the agency itself to ask for the IRS action? While the IRS has had a history of taking actions that curry favor with the current political powers and has sometimes been accused of a pro-Democratic bias, the funneling of information to ProPublica and the HRC, the “hands-off Planned Parenthood” demand, the Hendershott matter, and the late-breaking news that information about the scandal was known about but not disclosed during the 2012 election year suggest political pressure from outside the agency. That would not be surprising.
After all, this is the administration that has given us the HHS Mandate, supported the claim in the Hosanna-Tabor case that a religious body could not choose its own ministers, wouldn’t defend the Defense of Marriage Act in court, increased federal financial support for Planned Parenthood, and is trying to stop military personnel from sharing their faith. This all indicates an agenda of hostility to traditional Christian morality and a willingness to share in the repressiveness that has come to characterize the political left.
Congressional hearings on the IRS scandals have begun. The respective Congressional committees should invite Dr. Hendershott and the heads of NOM and the pro-life groups in question to come before them to tell their stories. The committees need to be unrelenting in their effort to reach to the depths of this scandal, which may be one of the most serious in U.S. history. While I have not always been a supporter of special prosecutors—I wonder if their concerns have always been with seeing that justice is done and if they have sometimes promoted political agendas—the questions about the Obama administration’s role in this and the seriousness of the matter indicates that one might be needed. Both high and low-level officials and civil servants and political appointees in the IRS should also be aware that such behavior—along with any attempts to silence critics of the agency—is the “stuff” of massive civil rights lawsuits, not just against the government so that the taxpayers pick up the bill but also against them individually.
In light of all this, one also hopes that the public will see the grave danger of having the IRS enforce the Obamacare law and demand that it be stopped.
Beyond this, it is time for the serious debate—that has been avoided for years—about the entire federal tax structure. A flat tax that would necessitate a smaller and less intrusive collection apparatus than the IRS may be indicated. It could easily bring in as much revenue as currently, and meet the demand of Catholic social teaching that it be geared to the principle of “ability to pay” as much as a graduated tax does.
Stephen M. Krason is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists. His latest book is The Transformation of the American Democratic Republic. This column first appeared on Crisismagazine.com.