In the News
Reason: IRS Scandal Implicates Democrats
By A. Barton Hinkle
That becomes apparent from a complaint filed this month with the Senate’s ethics committee by the Center for Competitive Politics. The complaint asks the committee to investigate Sens. Carl Levin, Dick Durbin, Chuck Schumer, Al Franken, and several others for improperly trying to sway IRS deliberations and obtain confidential taxpayer information.
Admittedly, asking the Democrat-controlled committee to investigate Democrats for targeting Republican-leaning groups is a Quixotic pursuit. But Quixotic is not the same as meritless. And the complaint contains mountains of merit.
The complaint details several letters Levin wrote to the IRS in which he insisted that “a message needs to be sent” to social-welfare groups “on an urgent basis,” and that the message should make it “crystal clear” they needed to restrict their political activities. Just so the IRS would not misunderstand, he drew attention to two TV advertisements—one by Crossroads GPS and another by Patriot Majority USA.
CCP
A Welcome Decision in SBA List v. Driehaus
By Allen Dickerson
It may not be this Term’s flashiest political speech decision, but today’s unanimous Supreme Court decision inSusan B. Anthony List v. Driehaus is certainly a welcome ruling. While the case did not directly decide the constitutionality of Ohio’s “truth in politics” statute, it paves the way for a swift, efficient resolution of this, and future, First Amendment cases.
Ohio’s truth in politics law is probably unconstitutional. “Any person” may file a complaint claiming that any given political statement is a lie. A state agency, the Ohio Elections Commission, composed of partisan officials, determines whether to find “probable cause” that the statement is indeed untrue. Then, the complainant gets to conduct an invasive investigation—depositions, electronic discovery, interrogatories. Suddenly, a member of Congress, for example, backed by the enforcement powers of the state, has a free pass to tear apart his political foes. If, after an investigation, the full Commission finds a violation, it refers the case to a prosecutor for trial. This is not exactly a statute that hews closely to the constitutional command that governments “make no law…abridging the freedom of speech.”
In this case, Susan B. Anthony (SBA) List is a pro-life organization. After Congressman Steven Driehaus voted in favor of the Patient Protection and Affordable Care Act, SBA List announced it would run an advertising campaign informing voters that Driehaus voted to publicly fund abortions. The veracity of this statement—like many assertions about the administrative state—is a complex matter of some dispute, but suffice it to say that some consider it objectively true.
Reaction Round-Up: Lois Lerner’s “Lost” Emails
By Luke Wachob
Investigators and onlookers of the IRS targeting scandal have long expected to find answers to their questions in the emails of Lois Lerner, former Director of the Service’s Tax Exempt Organizations Division. Late Friday afternoon, the IRS announced that, due to a computer crash, it lost 2 years of Lerner’s emails to and from anyone outside the IRS, spanning from January 2009 to April 2011. Whoops.
The announcement provoked some justifiable confusion and outrage. How can a single computer crashing cause emails to go missing? Aren’t emails stored on servers? Doesn’t the IRS back up its records? Isn’t the IRS required by law to back up its records? Why did it take until now to realize that 27 months of emails were lost way back in 2011? Would the IRS be cool with it if any of us had lost 2 years of emails relevant to an ongoing IRS audit?
SCOTUS
Wall Street Journal: Supreme Speech Victory
Editorial
Monday’s decision concerned whether Susan B. Anthony was able to sue. The Sixth Circuit Court of Appeals had said it could not because Mr. Driehaus withdrew his complaint after he lost. But Justice Clarence Thomas wrote for the Court that this decision improperly minimized the burden on groups whose speech is chilled for fear that they could be sanctioned or sued. Lower courts will now revisit the constitutional challenge.
As it happens, Susan B. Anthony’s billboard claim has been vindicated by the Obama Administration’s rule forcing religious groups to finance abortifacients in their health-care policies for employees. In a democracy, voters rather than a priesthood of regulators are obliged to sort out the truth or falsity of political claims. Congrats to Susan B. Anthony, and perhaps the Sixth Circuit will seek out some remedial First Amendment education.
Washington Post (Volokh): Anti-abortion group may proceed with its challenge to Ohio’s ban on knowing/reckless false statements in election campaigns
By Eugene Volokh
The Susan B. Anthony List argued that its allegations were correct because the Act would have funded certain kinds of abortions, and Driehaus voted for the Act; Driehaus argued that the Act actually wouldn’t permit such abortions — for a sample of the debate, see the transcript of the hearing in front of an Ohio Elections Commission “probable cause panel”. The commission’s panel voted 2-1 to find probable cause that the statements were indeed knowingly or recklessly false and to proceed with the case.
But in today’s Susan B. Anthony List v. Driehaus, the Court did not decide whether such laws were constitutional, or whether SBA List’s statements were knowingly or recklessly false. Rather, it considered whether the List could proceed with its challenge to the law, given that the proceedings against it had been stopped. (Driehaus lost the election and then withdrew the complaint.) The Sixth Circuit had held that the case wasn’t “ripe” for decision, given the absence of any imminent threat of future proceedings (and the lack of any legal judgment against the List in the past proceedings). As the Supreme Court described it,
IRS
Wall Street Journal: A Tale of Two Scandals
By Peggy Noonan
The 18½ minutes of destroyed evidence had a galvanizing effect on an already galvanized national scandal. Rose Mary Woods was hauled before a grand jury, questioned, derided, called a pawn in a criminal coverup. She endured for the rest of her life what the New York Times in its obituary called a “hideous, disfiguring fame.”
And Richard Nixon’s government of course came crashing down, as did he.
Why is this pertinent?
Because the Obama administration is experiencing what appears to be its own Eighteen-and-a-Half Minute moment. In a truly stunning development in the Internal Revenue Service scandal, the agency last week informed Congress that more than two years’ of Lois Lerner’s email communications with those outside that agency—from 2009 to 2011, meaning the key years at the heart of the targeting-of-conservatives scandal—have gone missing. Quite strangely. The IRS says it cannot locate them. The reason is that Lerner’s computer crashed.
Washington Post: Here’s how the IRS lost emails from key witness Lois Lerner
By Philip Bump
The IRS also had two other policies that complicated things. The first was a limit on how big its employees’ email inboxes could be. At the IRS, employees could keep 500 megabytes of data on the email server. If the mailbox got too big, email would need to be deleted or moved to a local folder on the user’s computer.
Emails considered an “official record” of the IRS couldn’t be deleted and, in fact, needed to also have a hard copy filed. Those emails that constitute an official record are ones that are loosely defined under IRS policy as ones that were “[c]reated or received in the transaction of agency business,” “appropriate for preservation as evidence of the government’s function or activities,” or “valuable because of the information they contain”. The letter sent to the senators suggests that it was up to the user to determine what emails met those standards. It’s not clear if Lerner had any hard copies of important emails.
The effect of the size limit and the need to preserve records is that IRS employees have local copies of emails, particularly important ones. That’s the good news. By searching Lerner’s computer and those of other employees, the agency was able to compile thousands of emails sent from and to Lerner from 2011 to 2013.
Washington Examiner: Darrell Issa subpoenas IRS commissioner over lost Lois Lerner emails
By SUSAN FERRECHIO
House Oversight and Government Reform Committee Chairman Darrell Issa has subpoenaed the commissioner of theInternal Revenue Service to testify next week before Congressabout a trove of lost emails that could contain evidence of a plan to targeted conservative groups.
Issa, R-Calif., will hold a June 23 hearing aimed at finding out more about two year’s worth of emails — from 2009 to 2011 — that the IRS has reported lost. The emails were from former top IRS official Lois G. Lerner to Justice Department andTreasury officials.
The Federalist: Lacking Curiosity, Lacking Credibility: The Media’s IRS Scandal Problem
By Mollie Hemingway
As of early Monday morning, there is no indication of the latest news on the scandal on the home page of CNN, the New York Times, the Los Angeles Times, and MSNBC, to name the first four sites I checked.
And in the case of the New York Times, the Los Angeles Times and MSNBC, there are no news stories about the lost emails anywhere on their site. If you get your news from these media outlets, you literally haven’t heard word one about this latest update. Covering up salacious scandal updates is appropriate behavior for public relations firms or house organs, perhaps, but it’s journalistically indefensible.
And a note about the Washington Post. The paper has no original content about the scandal, instead posting two AP reports online. A friend told me that not only was the update not on the front page of the paper, but she couldn’t find it anywhere in the front section of the paper. The Washington Post, as its name suggests, is based in the nation’s capital, which is also where the IRS and the White House are based. I’m going to go out on a limb and guess that the paper’s not going to win a Pulitzer for coverage of this scandal.
Independent Groups
NY Times: A Church-PAC Link Raises Questions in Mississippi
By Derek Willis
That might be unremarkable except for one thing: The political action committee that paid for the ad shares an address and leadership with a local church. “All Citizens for Mississippi” did not appear to exist at the time of the ad’s publication. Its registration as a super PAC with the Federal Election Commission was posted online last week and contains one important clue about its origins. All Citizens for Mississippi shares an address with New Horizon Church International in Jackson and also names Jacqueline Vann, the church’s chief financial officer, as its treasurer.
If church resources were used by the PAC, that could be “potentially problematic” for the church, said Michael Toner, a partner at the Wiley Rein law firm and a former F.E.C. chairman. “The people who are associated with churches, you can be involved in politics, but need to do so in your personal capacity. That’s the dividing line: Is it in their personal capacity?”
Kochs
Politico: Kochs launch new super PAC for midterm fight
By KENNETH P. VOGEL and DARREN GOODE
It’s an evolution for billionaire industrialists Charles and David Koch. The vast network of political nonprofit groups they helped build has mostly funneled its unprecedented political spending into issue-based campaigns that usually slam Democrats for supporting big government but seldom explicitly ask voters to support GOP candidates.
That’s expected to change under Freedom Partners Action Fund, according to Marc Short, president of Freedom Partners Chamber of Commerce, an increasingly powerful force in the Koch network that will operate in association with the new super PAC.
State and Local
Illinois –– Corporate Political Activity Law: The Law of Unintended Consequences?
By Jisha V. Dymond
As a result, Governor Quinn’s Republican opponent Bruce Rauner just received a $2.5 million dollar contribution from a hedge fund CEO. Mr. Rauner contributed more than $250,000 to his campaign (indeed, reports indicate Mr. Rauner has pumped more than $6 million into his campaign) which lifted the contribution limits for all candidates – including Mr. Rauner.
