FEATURED:

A lesson on abuse of power by Obama and his Senate allies

A lesson on abuse of power by Obama and his Senate allies
© Getty Images

Republicans on Capitol Hill are outraged by the announcement that the Department of Justice would stick with the Obama administration decision not to prosecute Lois Lerner. She, of course, was the face of the IRS scandal in which the tax agency delayed approvals of nonprofit status for conservative groups that were doing the same type of public education and voter mobilization that liberal groups have done for ages.

But congressional Republicans always set the bar both too high and too low when it came to the IRS’s actions. They set it too high in that they immediately declared that the scandal constituted criminal wrongdoing and too low by suggesting that the scandal hinged on a finding of criminal wrongdoing. The real problem was never one of a few rogue IRS employees engaging in criminality. Rather, the IRS scandal was about abuse of power by elected officials, who consciously sought to weaponize the IRS against their political adversaries.

ADVERTISEMENT
It began in 2010, as President Obama started ramping up his 2012 reelection campaign and congressional Democrats feared major losses in the coming midterm elections. The president launched a public relations campaign to have the IRS investigate nonprofit organizations that were espousing conservative views and mobilizing voters, most notably the numerous, nascent “tea party” organizations. These organizations were doing what nonprofits such as the Sierra Club, Planned Parenthood and the NAACP have done for decades. But Obama repeatedly attacked the tea party organizations as “shadowy groups with harmless sounding names” engaged in a “corporate takeover of our democracy.”

Civil servants are just like everyone else. They respond to the boss’s exhortations, especially if they are sympathetic to those urgings, as Lerner likely was. Moreover, as I’ve outlined previously, the president was joined by numerous Democratic senators in demanding the IRS take aggressive action. Sen. Sheldon WhitehouseSheldon WhitehouseSenate Dems ask Trump to disclose financial ties to Saudi Arabia Democrats won’t let Kavanaugh debate die Senate poised to confirm Kavanaugh after bitter fight MORE (D-R.I.) summoned Patricia Haynes, then deputy chief of criminal investigation at the IRS, before his subcommittee on terrorism and berated her for not criminally prosecuting conservative nonprofits.

Sen. Carl LevinCarl Milton LevinCongress must use bipartisan oversight as the gold standard National security leaders: Trump's Iran strategy could spark war Overnight Defense: McCain honored in Capitol ceremony | Mattis extends border deployment | Trump to embark on four-country trip after midterms MORE (D-Mich.) wrote several letters to acting IRS Commissioner Douglas Shulman demanding investigations of nine specific conservative organizations, then announced that his Senate committee would hold hearings on the IRS’s “failure” to prosecute and investigate grassroots conservative organizations, hearings he had to put on hold when the IRS targeting scandal broke a few days letter. Sens. Dick DurbinRichard (Dick) Joseph DurbinFarm bill negotiators should take advantage of the moment The Hill's 12:30 Report — Trump says he is cutting foreign aid over caravan | Lawmakers point fingers at Saudi crown prince | DNC chair downplays 'blue wave' talk The Hill's Morning Report — Presented by PhRMA — Early ballots pouring in with 15 days to the midterms MORE (D-Ill.), Charles SchumerCharles (Chuck) Ellis SchumerManchin wrestles with progressive backlash in West Virginia The Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Health care a top policy message in fall campaigns McConnell says deficits 'not a Republican problem' MORE (D-N.Y.), Michael BennetMichael Farrand BennetEagles player sits out national anthem Trump administration denied it has ‘secret’ committee seeking negative information on marijuana: report Overnight Health Care: Senators target surprise medical bills | Group looks to allow Medicaid funds for substance abuse programs | FDA launches anti-vaping campaign for teens MORE (D-Colo.), Al FrankenAlan (Al) Stuart FrankenElection Countdown: Takeaways from heated Florida governor's debate | DNC chief pushes back on 'blue wave' talk | Manchin faces progressive backlash | Trump heads to Houston rally | Obama in Las Vegas | Signs of huge midterm turnout Dem holds single-digit lead in race to replace Franken GOP lawmaker once belittled sexual harassment: 'How traumatizing was it?' MORE (D-Minn.), Jeanne ShaheenCynthia (Jeanne) Jeanne ShaheenBrunson release spotlights the rot in Turkish politics and judiciary Overnight Defense — Presented by The Embassy of the United Arab Emirates — Missing journalist strains US-Saudi ties | Senators push Trump to open investigation | Trump speaks with Saudi officials | New questions over support for Saudi coalition in Yemen Senators demand answers on Trump administration backing of Saudi coalition in Yemen MORE (D-N.H.), Jeff MerkleyJeffrey (Jeff) Alan MerkleySanders, Harris set to criss-cross Iowa Dem senator calls for US action after 'preposterous' Saudi explanation Graham: Saudi’s findings on slain journalist not 'credible' MORE (D-Ore.) and Tom UdallThomas (Tom) Stewart UdallSenate Dems ask Trump to disclose financial ties to Saudi Arabia Hillicon Valley: Officials warn of Chinese influence efforts | Dow drops over 800 points | Tech stocks hit hard | Google appeals B EU fine | James Murdoch may be heading for Tesla | Most Americans worried about election security For everyone’s safety, border agents must use body-worn cameras MORE (D-N.M.) also improperly pressured the IRS to investigate specific conservative organizations.

In short, with Obama informing the civil service that he considered tea party organizations dangerous and a threat to democratic values and with leaders in the Senate majority placing intense pressure on the IRS to target conservative groups, IRS bureaucrats reacted by flagging these organizations and awaiting instructions from above. Applications by conservative groups were pulled aside, forwarded to a special unit in Washington, and disappeared into a black hole.

The IRS scandal is one of abuse of power, regardless of criminality. Obama and his Senate allies issued baseless accusations that ordinary, politically engaged citizens were violating the law en masse, improperly pressuring the IRS to hamper their lawful activities. The IRS, unfortunately, took their threats to heart. A 2013 study by researchers at the Harvard Kennedy School of Government and Stockholm University concluded that the IRS harassment of tea party groups cost Mitt Romney between 5 million and 8.5 million votes in 2012 versus Obama’s 5 million vote margin of victory. It is hard to believe that this was not the intent of Obama and the Democratic senators who pressured the IRS to target tea party organizations, freezing their activities.

In the end, Lerner is something of a sideshow. The real problems are first, the president and leaders in Congress should not use their power to pressure the bureaucracy to do their partisan bidding, and second, if you give government the tools to regulate political speech, the government will weaponize them for partisan gain by the party in power. No “criminal” behavior is necessary. That, and not the tea party, is what threatened democracy then and now. Too bad that’s not the IRS scandal Congress chose to focus on.

Bradley A. Smith is a former chairman of the Federal Election Commission. He is now the chairman of the Center for Competitive Politics.