Category Archives: Public Policy and Governance

Scandal at the IRS

I’ve been reading a variety of reports about the allegations that the IRS singled out Tea Party tax exemption applications for extra scrutiny. So here are a few random observations, culled from those reports and accusations:

1) It’s worth noting that condemnation has been utterly bipartisan. Liberal blogs and Democratic commentators have been highly critical of politicization of the IRS. (Why do I think that, if this had happened during a Republican administration, the reaction at Fox “News” would have been considerably more defensive?) And let me be clear: if the IRS singled out any organizations for differential treatment based upon their politics, that was wrong. 

2) That said, what we are seeing is in significant measure yet another unanticipated result of the wrongheaded Citizen’s United decision. Citizens United allowed any organization of any kind to spend money out of its general treasury to run political ads. As Chris Hayes has noted, that decision brought about a pivotal moment for politics and taxes and campaign spending in this country and we’re still dealing with the fallout. Republican Karl Rove and Democrat Bill Burton used the Citizens United ruling in the run-up to the 2012 elections. Both of them used social welfare nonprofits to run overtly political ads; that allowed them to intervene in political campaigns without disclosing their donors. Others soon followed.

“Suddenly, the IRS starts getting a flood of new applications from other political groups and strategists saying, ‘Oh, oh, it turns out I too want to set up a social welfare organization that just so happens to be focused on taking the country back from Barack Hussein Obama. Now, here is the thing the IRS appears to have done unequivocally wrong, that we all agree was absolutely inexcusable. They reacted to all this by targeting one part of the ideological spectrum in looking at whether this flood of new applicants passed the smell test. Being skeptical about a new wave of wolves in sheep’s clothing invading the nonprofit game was entirely appropriate.”

3) As Hayes points out, Congress requires the IRS to review every application for tax-exempt status to weed out organizations that are partisan, political, or that generate private gain. Congress has imposed this requirement on the IRS, and its predecessor agencies, since 1913.  When it comes to 501(c)(4) organizations, the IRS is supposed to draw a distinction between groups that are “primarily engaged” in politics and groups that really are primarily engaged in “social welfare”—somehow “promoting the common good and social welfare of the community.”

4) The social welfare tax exemption is being used by existing 501(c)(4) organizations, including some very large ones, to promote partisan political interests—the very activity Congress has explicitly prohibited for a century. The New York Times ran a useful explanation  about this last Tuesday.

5) It is not an excuse, but it does bear noting that none of the organizations that the IRS subjected to improper levels of scrutiny was denied tax exempt status.

6)  Congress is demanding that the agency do more and more with less and less. As David Levinthal reported at the Center for Public Integrity, the IRS’ Exempt Organization Division–the division charged with the violations–processed significantly more applications in 2012 than it ever had. At the same time, the entire IRS was operating on a much-reduced budget, as a result of several rounds of Congressional cost-cutting.

“Over the last two years, government watchdog groups filed more than a dozen complaints with the Internal Revenue Service seeking inquiries into whether large nonprofit organizations like those founded by the Republican political operative Karl Rove and former Obama administration aides had violated their tax-exempt status by spending tens of millions of dollars on political advertising. The I.R.S. never responded… Because they purport to be engaged primarily in issue advocacy, not election advocacy, tax-exempt groups are not closely regulated by the Federal Election Commission. That task falls, instead, to the I.R.S., which can take years to investigate problems and is required to do so in strict secrecy… The tax code states that 501(c)(4)’s must operate “exclusively” to promote social welfare, a category that excludes political spending. “

The fact that the agency is understaffed does not excuse lawbreaking; what this revelation does, however, is point to systemic fiscal and managerial issues within the IRS that need to be addressed. Unfortunately, given the blood-lust of those in Congress who are intent upon using the IRS misbehavior for entirely partisan purposes, a carefully calibrated and deliberate review of agency operations is unlikely.

What the IRS should be doing is looking closely at every application. The politics of the applicant is irrelevant–but compliance with the rules governing tax-exempt status is anything but. Granted, those rules have been considerably complicated and confused thanks to Citizens United, but that makes competent, even-handed oversight more important than ever.

If Congress wasn’t so broken, this episode might lead to meaningful reform. I’m not holding my breath.

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And Now a Word from the Doctor

I’m relinquishing my space today to my cousin the cardiologist. As he notes, it should be possible to legislate restrictions that will save lives without running afoul of the 2d Amendment. Unfortunately, in our current bipolar political environment, where every issue is painted in black and white –where complexity and shades of gray are “elitist notions” and the most innocuous regulations are omens of the coming apocalypse–the prospects aren’t bright.

            FIREARM VIOLENCE IN THE UNITED STATES: A MEDICAL OPINION

Most people don’t realize that over 30,000 people are purposely shot to death each year in the U.S. Moreover, rates of firearm-related violent crimes continue to climb, having increased by 26% since 2008. To gain perspective on these numbers, firearm deaths have now reached a yearly rate that equals that of automobile fatalities. What we can do to stem such violence is urgent but hampered severely by the rabid supporters of the second amendment and, of course, the gun lobby. Some clarification recently has been shed on this problem by a study appearing in the prestigious medical journal, the AMA sponsored Archives of Internal Medicine. These authors explored the question whether more restrictive firearm laws in a given state are associated with fewer shooting deaths. To answer this question, using sophisticated statistical methods, they measured the association between the rate of shooting deaths in a state-by-state rating (divided into quarters) of strength of legislation designed to limit sale and use of firearms. Their results were very illuminating: Those states with the fewest firearm regulations, as exemplified by Utah and Louisiana (0-2 laws), suffered the highest rate of firearm fatalities, which included both homicides and suicides. The states with the strictest pattern of regulation, as exemplified by Hawaii and Massachusetts (9-24 laws) experienced the lowest fatality rates. Indiana fell into the second lowest category for regulation and, as expected, fell into the second highest incidence of firearm deaths.

These authors freely admitted that finding an association between two factors—gun laws and mortality—does not prove that these two are causally related. But it sure raises important thoughts about what we as a society can do about this problem. Further research is obviously needed, but it is quite likely that more restrictive gun laws can save lives.

More aggressive attempts to identify, treat and constrain the huge numbers of those who are mentally ill is an exercise doomed to failure. Widespread arming of teachers and/or police officers is equally ridiculous, especially since it would increase chances for erroneous shootings in the absence of any expected benefits.

With such limited options available, what are we left with? Although we need not scrap the second amendment, those who hold legislative power should seriously consider stronger laws restricting guns, while, at the same time, sponsoring and performing more comprehensive research on this urgent problem. If we value life, we cannot afford to wait!

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Just a Cost of Doing Business

The Indiana Supreme Court has issued yet another unanimous ruling in a case that legal observers considered–at the very least–a close call.

A few weeks ago, the Court upheld the use of the state’s educational voucher program to pay parochial school tuition, despite language in the Indiana Constitution that prohibits the payment of state dollars “for the benefit of” any religious organization or institution.  Unlike courts in other states with similar constitutional provisions (sometimes referred to as “Blaine Amendments”), the Indiana Supremes ruled that parents, not schools, benefitted from the program.

Like vouchers or not, the notion that parochial schools do not benefit from this new source of income is–well, let’s just say it’s quaint.

Now, the Court has unanimously ruled that Indiana’s cap on punitive damages is constitutionally fine and dandy, overturning a widely-praised lower court ruling by Judge David Dreyer to the contrary. Dreyer had ruled that the arbitrary ceiling on such awards violated both separation of powers and the right to trial by jury. This week, the Indiana Supreme Court ruled that the imposition of caps on such awards was constitutionally permissible.

Let’s accept the Court’s ruling on the law. (We have no choice.) What about the policy implications? After all, even if caps are constitutional, they certainly aren’t constitutionally required.

The whole point of punitive damages (which, by the way, are rarely awarded) is to teach a lesson to a defendant that has engaged in egregiously bad behavior. These damages aren’t meant to compensate a plaintiff for injury; they are meant to punish wrongdoing and deter similar behavior by others. When a corporation or other well-capitalized institution is responsible for the bad behavior in question, the amount awarded is supposed to be high enough to hurt the perpetrator’s bottom line. That’s the whole point.

In Indiana, punitive damages are capped at three times the amount of actual damages, or 50,000, whichever is higher.

For most large and medium-sized businesses in today’s economy, $50,000 is chicken feed. In cases where a company is profiting handsomely from the misbehavior in question, that fifty thousand dollars can be considered part of the cost of doing business.

In rescuing the cap, the Court has effectively erased the utility of punitive damage awards in such cases. We will undoubtedly hear that this ruling reinforces Indiana’s “business-friendly” legal climate. Count me as one who is less than thrilled that we are hanging out the welcome sign to businesses eager to control the costs of their own reprehensible practices.

With the departure of Randy Shepard, Frank Sullivan and Ted Boehm, Hoosiers are left with Mitch Daniels’ Supreme Court. It is a much-diminished body.

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The Blame Game

When I first began practicing law, there were still very few women in the profession. One of the very first to have broken the gender barrier was a local divorce lawyer who had become legendary (not in a good way) in the legal community. Whether she’d become embittered by barriers she’d faced, or was just a bit “off,” there were multiple stories of courtroom appearances and client clashes. My favorite arose during her representation of the husband in a nasty divorce, when she explained to the court that the wife’s personality was so unpleasant that it had finally caused her poor husband to stab her.

That old story came to mind because I’ve been reading various pundits’ assignments of blame for Congressional dysfunction. Evidently, it’s all Obama’s fault that members of the legislature are refusing to do much of anything. He hasn’t “played hardball” or “twisted arms,” or maybe he hasn’t “schmoozed” enough…but whatever the tactical deficiency, it’s clearly his fault that the Republicans hate him and refuse to pass any bill–no matter how reasonable or necessary, no matter that the measure was  previously part of the GOP’s own agenda–lest it be seen as compromising with the White House.

The fact that current congressional intransigence stems not from philosophical differences but from petty politics, visceral antagonism and more than a little racism has hardly been a well-kept secret. Pat Toomey, the Republican Senator who cosponsored the recently defeated background check bill, confirmed this state of affairs when he admitted that a number of Republicans had voted against the bill purely out of animus toward the President, and unwillingness to give him a “win.”

Whatever Obama’s strengths and weaknesses, we send people to Congress to focus on sound policy and the common good of the American public. A certain amount of political game-playing is inevitable, but when partisanship dictates every action taken, when calculations of political advantage trump all else, the system is broken. Lawmakers may think they are beating Obama–but they are really betraying the American people.

Blaming the President for the childish behavior of the legislative branch is like blaming the wife whose flawed personality “made” her husband stab her.

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Here’s My Question

A study recently published in The Archives of General Psychiatry adds to a body of evidence linking the growing incidence of autism to early-life exposure to pollution. According to the study, children with autism are two to three times more likely than other children to have been exposed to car exhaust, smog, and other air pollutants during their earliest days.

“We’re not saying that air pollutioncauses autism. We’re saying it may be a risk factor for autism,” says Heather Volk, lead author on the new study and an assistant professor of preventive medicine at the University of Southern California. “Autism is a complex disorder and it’s likely there are many factors contributing,” she says.

Now, I’m not a doctor and I don’t play one on TV. (Nor do I have a subscription to the Archives of General Psychiatry–I came across a reference to the study while reading another journal article.) I’m not a climate scientist either. So–just like the deniers who prefer to believe that climate change is a big myth–I do not possess the ability to independently review the evidence and judge its persuasiveness.

I understand the resistance to environmental regulations by those whose economic interests are affected–the oil and gas producers and others whose profits would suffer if we really got serious about carbon emissions. I know those interests have been heavily invested in a campaign of “disinformation” and that they’ve managed to confuse a lot of people who–like me–aren’t scientists able to independently evaluate the evidence.

But let’s just assume that the deniers are right–that 99% of the scientists who are able to evaluate the evidence are wrong, and the other 1% are right. Why wouldn’t it still make sense to clean up the air and water? Even the deniers aren’t arguing that pollution is good. We have plenty of irrefutable evidence linking air pollution to higher incidences of respiratory diseases. There are these growing links to autism and other disorders. And as anyone whose traveled in China can attest, bad air quality can be a real turn-off–I’ve yet to meet anyone who enjoys breathing black air.

Here’s the calculus as I see it: one the one hand, there is no doubt that continuing our polluting ways negatively affects our quality of life. There is evidence that it contributes significantly to a variety of diseases, and overwhelming consensus that it is warming the earth among those who actually know what they’re talking about. On the other hand, there is no benefit whatsoever from continuing to pollute–except to companies whose profits depend upon continued emissions.

On one side, cleaner air, healthier people, and the possibility of saving the planet. On the other side, big oil.

Seems pretty clear-cut to me.

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