Ed. note: This is the latest installment of Righteous Indignation, our new column for conservative-minded lawyers.

You probably saw this week’s topic coming. Until the folks at One First Street start tossing Elie and me some fresh meat to tussle over, my indignation — righteous as it is — must be directed elsewhere. Unless EM wants to argue that, when SCOTUS decided that Pelkey’s claim was not preempted by federal law in Dan’s City Used Cars, Inc. v. Pelkey, the Nine were, like, racist or something. (Query: what race is Dan? Where was the supplemental briefing?!)

So. The IRS’s targeting of conservative groups applying for 501(c)(4) status. I couldn’t not talk about this scandal, right?

Truly, I kept avoiding devoting this week’s column to the IRS abuses. Seriously.

For one thing, I was not initially so scandalized by this supposed scandal, though I was appropriately dismayed. Second, this story is still developing. So, I hereby reserve my right to be feverishly pissed off later….

I understand why initial reports are not cataclysmic, even if they are certainly disturbing. Eligibility for 501(c)(4) status is murky territory where pure charity and pure political activity meet. This tax exemption is no doubt frequently abused, and the frequency of that abuse warrants IRS scrutiny. Groups affiliated with the Tea Party or its ilk are more likely to be on the cusp between proper and improper 501(c)(4) status, not because they are conservative, but because they are political at all. Reasonable minds from all ideological vantage points should agree that targeting these groups while not also targeting their liberal equivalents is bad (even if the selective scrutiny may be weakly explicable, given the rapid — possibly disproportionate — increase in Tea-Party-type conservative groups in recent years).

Scanning for keywords like “patriot” seems like a ham-fisted way of accomplishing a goal that could have been achieved otherwise. As Megan McArdle of the Daily Beast wrote:

If what you’re concerned about is that most of the new groups being created are in fact thinly disguised electioneering vehicles, then what you want to do is take a random sample of the new groups, review them, and see what percentage turn out to be self-dealing or otherwise engaged in inappropriate behavior….

If Tea Party groups really were driving much of the post–Citizens United explosion, there was no need to specifically search for the words “tea party” or “patriot,” because those words would naturally be overrepresented in a random sample of new applications. The reason you specifically search for those words is that you want to target those groups specifically, and not, say, applications with “Progress,” “Organizing,” or “Action” in them.

This IRS screening practice appears politically biased and, well, kind of clumsy. The optics are real bad here, when truthfully the same nefarious ends could have been reached through subtler and less aesthetically offensive means. It looks evil, but it looks amateurishly evil.

The Treasury Department Inspector General’s 48-page report concludes roughly as much. Granted, the plot thickens with emerging allegations that other IRS offices might have employed similar procedures, the IRS may have improperly released confidential information from the applications, and the review of targeted groups may been excessively invasive. On Tuesday, Attorney General Eric Holder announced the launch of a coordinated probe by the FBI and the Department of Justice to see if crimes were committed in the course of the IRS targeting.

We’ll see what surfaces. Right now, though, I don’t see that high-level strategy necessarily guided this unjustified scrutiny. It doesn’t look like the machinations of Nixon to me yet.

Instead, it looks like low- to mid-level civil servants unfortunately entrusted with discretion over a muddy area of the tax code, exercising their own sh*tty judgment, guided by political bias. I see a bunch of middling government employees relying on one-dimensional assumptions about “those kooks” in the Tea Party. I see people thinking with all the nuance of a late-night chat show host. Imagine Bill Maher reviewing tax-exemption applications. People thinking dismissively about citizens who disagree with them and using those judgments to influence how they do their jobs.

Except those people have access to sensitive information.

That’s what I fear. I fear ordinary, ordinarily biased, ordinarily petty Americans with access to a lot of information about other ordinary Americans. Call it the banality of bureaucratic evil.

I am dismayed by the IRS’s misuse of its discretion. I am dismayed too, though, that we continue to open ourselves up for more abuse at the hands of just the sort of government workers I describe above.

As Wired magazine reported last week:

The immigration reform measure the Senate began debating yesterday would create a national biometric database of virtually every adult in the U.S., in what privacy groups fear could be the first step to a ubiquitous national identification system.

Buried in the more than 800 pages of the bipartisan legislation (.pdf) is language mandating the creation of the innocuously-named “photo tool,” a massive federal database administered by the Department of Homeland Security and containing names, ages, Social Security numbers and photographs of everyone in the country with a driver’s license or other state-issued photo ID.

Maybe this expansion of E-Verify amounts to a privacy-invading “biometric database,” as Wired reports and the ACLU’s white paper on the risks of E-Verify suggests. Maybe not. Maybe this is simply an efficient consolidation of information that is already accessible. Maybe this is nothing to clutch my libertarian petticoats over.

Even if mandatory, nationwide E-Verify is not worth our skepticism, that doesn’t undercut the need to be skeptical about every government intrusion, every apparently benign attempt by the government to gather and review information about its citizens. We ought to think very carefully before accepting each of these incremental encroachments, no matter how benign the original stated motive, because the people we will be entrusting with that information are likely no better or no worse than the IRS employees in Cincinnati.

Some may think that I want to move off the grid with my arsenal of unregistered firearms and an ice chest full of rescued embryos, scanning the skies for black helicopters. But I’m not really that kind of conservative. (Also, I do poorly in nature.) I don’t need to be paranoid or Obama-hating in order to be wary of growing government. I don’t need to be “that kind of conservative” in order to be worried about the IRS scandal, not because the Obama administration orchestrated some grand scheme, but precisely because it was lower-level functionaries who had the opportunity to be just as biased and petty as any of us can be in our less reflective moments.

I dislike big government because I’m a cranky, cynical misanthrope — not because I’m kept up at night by apocalyptic visions of Big Brother. Basically, I don’t like expansive government because the government is us. And, given the opportunity, we’re kind of jerks.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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