Unfortunately, we’ve become used to a gridlocked government. But in a democracy, we tend to tolerate congressional failures because re-election constitutes our consent to whatever they do—or don’t do.
It is a different story when unelected government employees fail to do their jobs. If, say, an entire IRS division responsible for tax-exemption issues simply ignores a long-standing lack of enforcement of the Tax Code, we should not chalk it up to politics. We want to hear another explanation such as incompetence, laziness, lack of staff, even malfeasance. Any of those explanations is easier to accept than the idea that civil servants fear political repercussions simply for doing their jobs.
So how do you explain the IRS’s failure to enforce the rule prohibiting so-called “social welfare” organizations from spending more money on electioneering than on enhancing social welfare? During the past two election cycles there has not been a more high-profile issue at the IRS’s feet than the millions of dollars that Sec. 501(c)(4) tax-exempt organizations (both conservative and liberal) are spending directly on the congressional and presidential elections. Certainly the best-known such entity is Karl Rove’s group, Crossroads GPS, which applied for a tax exemption and, apparently, has not yet been granted that status. In its application, which was released in December 2012, apparently without IRS permission, Crossroads said it would spend 20 percent of its money on research and some on elections, but also said such election spending “will be limited in amount, and will not constitute [our] primary purpose”—thereby meeting the regulatory standard.
Yet, according to news reports, of a total $64.7 million Crossroads reported in tax filings over 19 months, only 2 percent was spent on research. The rest of the money may or may not have been spent on elections, but the press attention given the group from its inception suggests its real purpose was politics rather than the general social welfare.
If the IRS staff was not reading the papers or other media outlets, then it certainly heard from other interest groups badgering it to investigate and take action on abuses of the tax laws by these (c)(4) groups improperly claiming tax-exempt status. Indeed, two groups, Democracy 21 and the Campaign Legal Center, say they wrote the IRS 10 times during 2011 and 2012 to take action. In one response, they got an IRS official to say “the IRS is aware of the current public interest in this issue” and that it would “consider proposed changes in this area.” But nothing happened.
In the meantime, these (c)(4)s continued raising and spending money on elections and perverting the campaign finance disclosure laws by keeping the names of their donors secret—as the law allows them to do. The news media covered the issue like a blanket, pointing out the cynical use of non-profit status to shield the identities of campaign donors, the overall failure of our election laws and the failure of the IRS to act.
After the most expensive election cycle in our history, the question then became whether the IRS would finally “consider proposed changes in this area,” as it had promised earlier in the year.
We got the truly remarkable answer in November 2012. In its announcement of its “priority” projects for the coming year, guess what? The agency made no mention of the social welfare organization issue that had raised the ire of so much of the public and the political class only weeks before. The IRS listed 13 priorities related to exempt organizations, but it couldn’t find room to add just one more—the only issue, probably, that anybody outside the inner circle of tax lawyers had ever heard of.
Why is the agency refusing to do its job? Is it fear? Incompetence? Between the two, I’d prefer it be incompetence, because the alternative is too disturbing.
Bruce D. Collins is corporate vice president and general counsel of C-SPAN, based in Washington, D.C. Email him at email@example.com.