Taxes and Politics: The IRS Befuddled

By David K. Shipler

            The Internal Revenue Service looks more befuddled than partisan when it comes to enforcing the federal prohibition against mixing political activity with the benefits of tax-exemption—a concept introduced into law in 1954 by Sen. Lyndon B. Johnson to help himself in a tough reelection campaign.

In practice, the statute has been widely ignored, even as conservative churches have made repeated efforts for years to provoke the IRS into withdrawing their tax-exempt status so they could challenge the law’s constitutionality in court. In the run-up to the election last fall, right-wing preachers denounced President Obama from the pulpit, endorsed conservative candidates, and urged parishioners to campaign and vote against politicians who favor abortion rights and same-sex marriage—and publicized their sermons widely to spark a reaction.

It hasn’t worked. The IRS has not taken the bait, at least so far, and the recent tempest makes it even less likely that the agency will gather its courage in the face of a well-organized conservative movement.

Indeed, the ban on electioneering by tax-exempt organizations was enacted to combat right-wing influence in the “anti-communist frenzy of the 1950s,” writes James D. Davidson of Purdue. “It was prompted by Johnson’s desire to challenge McCarthyism, protect the liberal wing of the Democratic Party in Texas, and win reelection.” Johnson was facing a tough race against an extremist Dixiecrat assisted by big money through The Committee for Constitutional Government (founded by publisher Frank E. Gannett) and Facts Forum (funded by oil magnate H.L. Hunt, a friend of McCarthy).

Johnson wanted Dixiecrat support, so couldn’t attack those groups directly, which in any case would have made him seem soft on communism—a death knell in Texas. Instead, on July 1, 1954, he rose in the Senate to propose an amendment to the tax-exemption statute, which already restricted lobbying. Now he asked that the ban be extended to political campaigning. “The whole thing was over in a matter of minutes,” writes Davidson. “There was no discussion, and the amendment was passed on voice vote.”  

The change was made in Section 501 (c) (3), which applies to churches and other non-profits. It prohibits “substantial” attempts to influence legislation and bars any participation or intervention in political campaigns. Donors get tax deductions for their gifts.

Tea Party and other such groups have applied under another section, 501 (c) (4), which grants exemptions to organizations “operated exclusively for the promotion of social welfare.” Donations are not tax-deductible, but the organizations pay no taxes on income. The current controversy erupted as conservative groups in question have tried to stretch the meaning of “social welfare,” defined not by the statute but by IRS rules, which require the organization to be “primarily engaged in promoting in some way the common good and general welfare of the community.” The section contains no explicit ban on political activity, but an IRS advisory states that “promoting social welfare does not include direct or indirect participation or intervention in political campaigns,” although “some political activity” may be acceptable. 

This is a bit squishy. According to the IRS examples, c-4 organizations approved in the past may rehabilitate and place the unemployed, provide a school district with a stadium, “develop methods of achieving simplicity and dignity in funeral and memorial services,” provide youth leadership training through a junior chamber of commerce, help financially-strapped individuals solve budgeting problems and pay their debts, run a roller skating rink for all residents of a particular locale, provide a shooting range and safety instruction, and so on.

If blatantly political activities are to be formally accepted under the law’s “social welfare” rubric, it will be a legal shift, so how the question is handled is important. On the one hand, any whiff of IRS politicization, especially given its sordid history, deserves alarm and condemnation. Republicans should know, since President Richard Nixon was a master at using government’s formidable taxing power against political opponents. If Obama were as ethically corrupt, Mitch McConnell and John Boehner would be at the top of the audit list. But there’s no indication—as of yet—that the White House had anything to do with IRS employees’ fingering Tea Party and other conservative organizations for special scrutiny in their applications for tax-exempt status.

On the other hand, the vagueness of the law and the confused landscape of free-wheeling political organizing lend themselves to inconsistent and inadequate enforcement. The IRS officials may have had a political agenda, as Republicans insist, or they may just have been struggling bureaucrats who happened on an unacceptable way of coping. They faced a sudden flood of applications from groups—largely from the right—that skated very close to the ill-defined edge of what the law permits in exchange for being exempt from taxes.

It may be a Faustian bargain, this deal of tax-exemption in exchange for a limitation on speech and electioneering, and it could easily be repealed by Congress. But as long as it’s on the books, the IRS is obligated to enforce it, and that puts the agency smack in the middle of the morass of politics. Policing requires careful examination of every application for tax-exempt status from every organization—left, right, middle, and in between—to be sure it is not merely a façade erected to shield from taxation an organization extensively involved in an election campaign. 

Human Rights: Wiping Away the Smirk

By David K. Shipler

            It used to be sadly comical when Russia took a holier-than-thou posture on human rights. But the United States has fallen so far that Americans don’t get to smirk much anymore. In the recent tit-for-tat over rights abusers who are being declared unwelcome in each other’s countries, at least three of the former top U.S. officials fingered by the Russians are, in fact, true violators of basic liberties. They have been branded legitimately. In the aftermath of today’s bombings at the Boston Marathon, it is worth remembering how easy it is, in the face of such tragedy, to deviate from the rule of law.

            The three are David Addington, Vice President Dick Cheney’s legal counsel, who evaded the law and the Constitution to engineer torture and illegal surveillance; John Yoo, who wrote infamous memos for Bush’s Justice Department defining torture so narrowly as to give the CIA practically a free hand; and Geoffrey D. Miller, who as an army major general commanded both Guantanamo and Abu Ghraib prisons, where suspects were abused and humiliated, generating iconic photographs.

            They are among the eighteen Americans listed by Russia.

The NRA's Dark America

By David K. Shipler

            Years ago, driving through the Wild West Bank, I was stopped by an Israeli army checkpoint on the road up the Jordan Valley. The young soldier asked if I had any weapons in the car. No, I said. Well, in that case, he advised, it would not be a great idea to continue.

            That’s the kind of America envisioned by the NRA: Don’t send your kids to schools where teachers can’t sport .45 Magnums on their hips or keep Tec 9s in their desks. Don’t lull your kids into thinking there are safe places, free from marauding crazies, where they can concentrate on learning. Remind them every moment of every school day how scary the world is, how vulnerable they are, how consistently high their stress and sense of danger should be. Beginning in their early years, keep those cortisol levels elevated to make sure they greet every affront as if it’s a dire threat. With teachers as role models, every kid will want to carry a weapon. What a wonderful country we’ll have.

Fifty Years Later: Will You Get a Good Lawyer?

By David K. Shipler

Adapted from Rights atRisk: The Limits of Liberty in Modern America

            Will you get good lawyering if you can’t afford it? Maybe, depending on where you’ve been charged. The quality of your legal defense will be determined, like the value of real estate, by three factors: location, location, and location.

            Fifty years today, the Supreme Court ruled unanimously in Gideon v. Wainwright that indigent defendants are denied their Sixth-Amendment guarantee of “the Assistance of Counsel” unless government provides them with lawyers. In practice, however, the effect of the ruling has been very spotty, creating a patchwork across the country. You’re better off in Washington, D.C., for example, than in parts of Texas and Georgia; anywhere in Alabama; and certain counties of New York, Michigan, and Pennsylvania. You’re usually more fortunate in federal than in state courts, and in local jurisdictions where indigent defense is funded by states rather than counties.

            Ask Anthony Ray Hinton. He has been sitting on Alabama’s death row since 1986, when his court-appointed lawyer was given only $500 to hire a reputable firearms expert to dispute the questionable findings of a police lab. The “expert” he found on the cheap, a one-eyed retired engineer who couldn’t operate a comparison microscope, had jurors laughing in ridicule.

Voting By Tax Return

By David K. Shipler 

            Years ago, my wife’s parents wrote on their tax return, “For use in the national parks only.” It made them feel better.

            Wouldn’t this be fun? What if, when we sat down to do our taxes, we discovered a new section on our 1040s that listed government programs, with a blank space beside each one? We’d write in the percentage of our tax payments that we wanted to be spent on defense, foreign aid, food stamps, housing subsidies, education, border security, and the like. Very empowering. It’s worth wondering how it would alter the federal budget. Polls give us a clue.

Medicaid: An American Parable

By David K. Shipler

            Watching the Republican governors who still insist that they will not accept a penny of the federal government’s money to provide health insurance to their near-poor citizens brings to mind Alexis de Tocqueville, the French historian who traveled in the United States in 1831. He saw a country honeycombed with generosity taking the form of myriad associations organized to promote one worthy cause or another.

What he chronicled in his work, Democracy in America, has come down to us as evidence of our powerful impulses to charity, to philanthropy, to the common good—so much so that today, United Way chapters present annual Tocqueville awards to honor individuals who have been exceptionally generous with time or funds.

To be sure, Tocqueville was not a big-government advocate. He admired citizen-led private efforts over those that came from above. “Wherever at the head of some new undertaking you see the government in France or a man of rank in England,” he wrote, “in the United States you will be sure to find an association.”

But for a modern society, intricate with technological and economic complexity, this observation raises two questions: one practical, one moral. What mechanism is most practical in, say, the area of health care? What can be done privately, and what must be done publicly? And where does moral responsibility lie? Only at the local level of community, or on the broader plane of national concern?

These are the elements of our most acerbic debates as we struggle and disagree over where to locate the shifting line that should divide the private from the public.

Targeted Killings: Justice is Relative

By David K. Shipler

            A dozen years ago, the notion that a named American overseas could be legally targeted for death on the say-so of any “informed, high-level official of the U.S. government,” as the Obama administration now argues, would have been patently absurd. The constitutional requisite for due process in which government allegations are challenged and tested and never taken for granted remained largely intact. Only in the heat of combat was the commander in chief entitled to exercise lethal power. Otherwise, death sentences were handed down from the courtroom, not from the Oval Office.

            But the country has fallen so far to the right on national security since 9/11 that anything less than autocracy seems reasonable and moderate. So it is with a new proposal, put forth by Sen. Dianne Feinstein, to involve the judiciary in the secret process of assassination. It is a mark of the age that what was once unthinkable becomes sensible. If the rule of law interferes, change the law. But if history is just, it will not judge us kindly.

The Other Vietnam Veterans

By David K. Shipler

            With John Kerry confirmed for Secretary of State and Chuck Hagel in hearings to become Secretary of Defense, much is being made of the breakthrough that they represent: the first time that veterans of the Vietnam War will have occupied those two senior cabinet positions. These men, each sobered in his own way by combat, know the miseries of warfare, and seem to have absorbed their lessons.

            But outside the glare of this spotlight on uniformed veterans, there are other Americans, those who went to Vietnam out of uniform, who also saw the miseries close at hand as they tried to do some good for ordinary people. I have watched recently as a farflung community of those invisible Vietnam vets have connected by Internet because one of them is dying. They are sharing reminiscences, are writing about the traumas they still carry, and are reaffirming the moral opposition to the war that moved them to activism decades ago.

Some avoided the war by persuading their draft boards that they were conscientious objectors, and then went to Vietnam anyway, in civilian clothes and unarmed.

Will Obama the Constitutional Lawyer Please Stand Up?

By David K. Shipler
     Published in The Nation, issue of Feb. 11, 2013
There’s something about Barack Obama that induces

Americans to imagine what they cannot see. The right

envisions a vile socialist, while many on the left picture

an inspired liberal, politically restrained in his first term

but now free to pursue his true beliefs.

No hard evidence exists to sustain either view. Obama

behaves like a centrist who leans tentatively left on certain

social programs but boldly right on military force and civil

liberties. His supporters, who have watched him duplicate and

codify some of the Bush administration’s most damaging civil

liberties violations, are now reduced to wishful thinking that an

authentic Obama will soon step forward and return the country

to the constitutional footing that was abandoned after 9/11.

Russia and the West: The Continuity of Culture

By David K. Shipler

            In 1977, after a deadly fire killed at least twenty and blackened the walls of Moscow’s massive Rossiya Hotel, a West German television crew was stopped by a police lieutenant from filming on the street outside. Why? asked the correspondent, Fritz Pleitgen. The officer explained: “We do not want to let foreigners laugh at our misfortune.”

            It was a quick glimpse into the xenophobia of Soviet times, and into Russians’ agony over the way they pictured themselves being seen by the outside world. Think how much pain and isolation it takes to imagine foreigners eagerly laughing at your tragedy.

            Given recent events, it’s worth asking how much Russia’s complex about the West has changed in 35 years.