05.22.2013 0

Lois Lerner pleads the Fifth

By Robert Romano

Lois Lerner, director of exempt organizations at the Internal Revenue Service (IRS) is pleading her Fifth Amendment right not to incriminate herself in the ongoing Congressional investigation over targeting by the agency of the tea party.

Lerner was set to give testimony before the House Oversight Committee on May 22, but a May 20 letter from her lawyer, William Taylor, changed all of that.

“She has not committed any crime or made any misrepresentation but under the circumstances she has no choice but to take this course,” Taylor wrote in the letter to committee chairman Rep. Darrell Issa exclusively obtained by the Los Angeles Times.

Taylor claimed that the hearing would “have no purpose other than to embarrass or burden her.” He asked that Lerner be excused from the hearing, but Issa refused and issued a subpoena.

In her opening statement, Lerner insisted, “I have not done anything wrong,” that she broke no laws or regulations. Members asserted that by delivering a sworn statement to profess her innocence, Lerner waived her right to refuse to give testimony. Issa excused her, reserving the right to recall her pending legal counsel on the question of whether she had waived her rights.

Of course, the purpose of questioning Lerner is to find out who authorized or ordered the targeting of tea party and other organizations applying for 501(c)(4) tax-exempt status for special scrutiny. Also, once the groups were targeted, to find out who authorized or ordered that invasive and improper follow-up questions be asked of applicants. Lerner directs the office responsible for these violations.

Members also want to know why Lerner did not disclose the scandal to the committee even when she knew about it, and instead provided “false or misleading information” four times last year.

According to a Treasury inspector general report, Lerner supposedly discovered the targeting of the tea party in June 2011.

The drama comes as the White House has confirmed it strategized with Treasury officials over Lerner’s disclosure of the scandal by planting a question at an American Bar Association conference.

Americans for Limited Government President Nathan Mehrens said the most recent disclosures “again underscore why a special counsel is needed in this investigation.”

“It may be the only way to find out what the White House knew and when it knew it,” Mehrens said.

In the meantime, the Senate Finance Committee took testimony on the scandal from IRS outgoing commissioner Steven Miller and former commissioner Douglas Shulman.

At that hearing, Senate Democrats demanded the IRS to overturn a 50-year old regulation permitting 501(c)(4) organizations that do not have to disclose donors to engage in a limited amount of political activity. That is, activity including electioneering in favor or against candidates for public office, and to make candidate and political action committee donations.

Current rules permit political activity as long as it does not constitute a majority of an organization’s function. And they permit an unlimited amount of issues advocacy and lobbying.

A change would prohibit 501(c)(4) from making expenditures on political activity, forcing them to reorganize as 527 organizations and disclose their donations.

But if anything, the IRS abuses — where organizations and individuals were targeted with special scrutiny and audits — demonstrate the need for government critics and their donor bases to shield themselves from retaliation by any administration. Only anonymity can achieve that.

In fact, it is precisely for this reason that the NAACP was shielded from disclosing its donors in NAACP v. Alabama (1958). Then Justice Harlan’s majority opinion stated, applying the First Amendment via the Fourteenth to Alabama, “We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.”

Now, tea party and other organizations have hard evidence that merely because they file for tax-exempt status they are discriminated against. What will happen to donors to tea party groups? Perhaps disclosure is overrated.

A long time ago, Thomas Payne’s Common Sense was originally published anonymously because it was considered treasonous content, and to protect the identities of those fighting for freedom in the American Revolution. Now we know why.

Robert Romano is the Senior Editor of Americans for Limited Government. 

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