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

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

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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 WhitehouseDemocratic senators seek documents on Trump's alleged call for Barr press conference Senate committee advances budget reform plan Bipartisan Enzi-Whitehouse budget bill a very bad fix for deficits 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 LevinRemembering leaders who put country above party Strange bedfellows oppose the filibuster Listen, learn and lead: Congressional newcomers should leave the extremist tactics at home 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 DurbinSenators voice support for Iran protesters but stop short of taking action GOP divided over impeachment trial strategy Democratic senators introduce bill to push ICE to stop 'overuse' of solitary confinement MORE (D-Ill.), Charles SchumerCharles (Chuck) Ellis Schumer2020 Republicans accuse Schumer of snubbing legislation Schumer: Leadership trying to work out competing surprise medical bill measures Top GOP senator: Drug pricing action unlikely before end of year MORE (D-N.Y.), Michael BennetMichael Farrand BennetFox News anchor apologizes for saying Booker dropped out of 2020 race Klobuchar unveils plan to secure elections as president New poll catapults Buttigieg to frontrunner position in Iowa MORE (D-Colo.), Al FrankenAlan (Al) Stuart FrankenTake Trump literally and seriously in Minnesota Ninth woman accuses Al Franken of inappropriate contact Al Franken to host SiriusXM radio show MORE (D-Minn.), Jeanne ShaheenCynthia (Jeanne) Jeanne ShaheenProgressive group to spend as much as M to turn out young voters On The Money: US paid record .1B in tariffs in September | Dems ramp up oversight of 'opportunity zones' | Judge hints at letting House lawsuit over Trump tax returns proceed Overnight Energy: EPA watchdog slams agency chief after deputy fails to cooperate in probe | Justices wrestle with reach of Clean Water Act | Bipartisan Senate climate caucus grows MORE (D-N.H.), Jeff MerkleyJeffrey (Jeff) Alan MerkleySenate passes legislation supporting Hong Kong protesters Democrats seize on report of FedEx's Jeff Merkley tax bill to slam Trump's tax plan Overnight Energy: Perry replacement faces Ukraine questions at hearing | Dem chair demands answers over land agency's relocation | Ocasio-Cortez, Sanders unveil 0B Green New Deal public housing plan MORE (D-Ore.) and Tom UdallThomas (Tom) Stewart UdallBureau of Land Management staff face relocation or resignation as agency moves west Overnight Energy: EPA watchdog slams agency chief after deputy fails to cooperate in probe | Justices wrestle with reach of Clean Water Act | Bipartisan Senate climate caucus grows Hillicon Valley: Twitter to refuse all political ads | Trump camp blasts 'very dumb' decision | Ocasio-Cortez hails move | Zuckerberg doubles down on Facebook's ad policies | GOP senator blocks sweeping election reform bill 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.