Early in the IRS scandal, the defenders of the Obama administration seemed baffled and unable to defend the agency’s actions. Recently, they have starting putting together a defense of the agency and thereby, the administration, a story to counter recent revelations. This defense comes up short.
The defenders’ account goes this way. Yes, the IRS was inept in enforcing the law, but incompetence does not equal partisan malice. The real scandal, we are told, was the groups posing as charities and spending money on political campaigns. Congress should strictly revise the rules governing tax exemptions to make sure no one can hide their political activities from the government. And, finally, as Nancy Pelosi remarked, Citizens United should be overturned.
This defense has two weak points and a major flaw. First, Citizens United had nothing to do with charitable organizations. The groups freed up by the decision already disclose their spending. Second, the defenders assume disclosure is an unquestioned good. But the IRS was trying to force the target groups to disclose a lot of information about their political activities criticizing the Obama administration. The IRS intimidated those groups. It could be said – and may yet be said- that the Tea Party groups were wrong to feel intimidated. The agency was only trying to enforce the law and so on. Good luck trying to convince most Americans that an IRS grilling is not intimidating.
Understanding the major flaw of the defense requires a brief side trip into campaign finance law. The authors of the apologia – the campaign finance reform community and its media allies - have long supported restricting and regulating campaign spending, restrictions that run counter to freedom of speech. They have insisted – and courts have partially agreed – that an appearance of corruption justifies restrictions on political speech. The reformers argue that an appearance of corruption weakens public confidence in government.
The “appearance of corruption” standard is a weak foundation for restricting political liberties. We ought to be concerned about the reality of corruption, not its appearance. We ought to determine what actually exists rather than what people believe exists. Truth, not opinion, should guide policymaking, not least when First Amendment rights are at stake. But these criticisms of the standard have not found favor, least of all among those who now defend the IRS.
Does the IRS scandal pose an appearance of corruption? A government agency with a long history of being used by incumbent administrations to attack their political opponents admits harassing the opponents of the Obama administration. And they are found to be doing that just at the periods such harassment could make a difference, prior to the 2010 and 2012 elections.
Of course, there may be reasonable explanations for everything that has come out. Such explanations appear highly unlikely. Therein lies the problem for the administration. The IRS scandal stinks to heaven: there is an unmistakable appearance of corruption in all this. Public confidence in government will take another hit.
The authors of the counter-narrative advise us now to look beyond appearances toward the realities of low agency budgets, political innocence, and bungling officials. But it is too late for that. The truth of the matter has long not mattered in campaign finance debates. Those who have spent the last four decades saying the appearance of corruption matters cannot now ask us to look beyond appearances. We must apply their standard to the IRS scandal.
The IRS’s defenders face a dilemma. To succeed, their IRS story must reject the “appearance of corruption” standard they apply to all other campaign finance matters. To win this battle, in other words, the defenders must be inconsistent. However, if they embrace their usual standard, the IRS and the administration appear corrupt and will probably lose the battle. A better path would be to worry about real, not apparent, corruption regarding the IRS and all other campaign finance questions.