Earlier this week the New York Times reported on three of the many conservative groups targeted by the Internal Revenue Service for special scrutiny. “[A] close examination of these groups and others,” said the Times, “reveals an array of election activities that tax experts and former I.R.S. officials said would provide a legitimate basis for flagging them for closer review.” The conclusion some people have drawn from this — and the point the Times reporters seem to be hinting at — is that the IRS auditing scandal isn’t a scandal at all. Some of the groups whose applications were delayed for extra review might not have qualified for tax-exempt status, or might have later failed to comply with the requirements for tax-exempt status. Therefore, the IRS was doing exactly what it should have been doing.
But wait a minute. What about the other groups, identified by “tea party” or other red flag terms, that were engaged in no “suspect” activities. It’s worse than guilt by association. It’s guilt by common identifying trait. It’s profiling. That’s not the way it’s supposed to work in the land of the free and the home of the brave.
Imagine that the local police have reason to suspect a person living in a pink house of criminal conduct, so they seek search warrants for all pink houses in the city. There’s not a judge in the country who would grant so outrageous a request.
Okay, so this example involves alleged criminal activity, the investigation and prosecution of which must meet the very highest constitutional standards. The IRS was only looking into qualifications for tax-exempt status.
So imagine this instead: The local building code authority believes that the owner of a pink house has installed new storm windows that do not meet the building code. Can the inspectors demand entrance into all pink houses on suspicion that they too have non-complying storm windows? Of course not. Such government conduct would violate everyone’s sense of fairness, not to mention the Constitution’s Equal Protection Clause.
The IRS’s targeting of conservative groups is no different. Of course there are groups, conservative and liberal, that will seek tax-exempt status with every intention of bending and even breaking the rules. There are also people living in pink houses who will violate building codes and engage in criminal activity.
But we expect, and our Constitution requires, that government play by the rules as well. To suggest, as the Times report does, that the IRS’s targeting of conservative groups is somehow less egregious because a few, or even many, of those targeted don’t qualify for tax-exempt status is no different than arguing that random police stops are just fine if they yield a few criminals.
So far the Times has not suggested that the Department of Justice’s review of AP phone records would be okay if the review led to the discovery of illegal activity somewhere. But then the Times has never been inclined to give an inch on freedom of the press. Our freedoms, though, are a different story.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.