“Lost In The IRS Scandal”: The Need To Know Facts About The Big Picture And Big Donors Of Dark Money
In the furious fallout from the revelation that the IRS flagged applications from conservative non-profits for extra review because of their political activity, some points about the big picture – and big donors — have fallen through the cracks.
Consider this our Top 6 list of need-to-know facts on social welfare non-profits, also known as “dark money” groups because they don’t have to disclose their donors. The groups poured more than $256 million into the 2012 federal elections.
1. Social welfare non-profits are supposed to have social welfare, and not politics, as their “primary” purpose.
A century ago, Congress created a tax exemption for social welfare non-profits. The statute defining the groups says they are supposed to be “operated exclusively for the promotion of social welfare.” But in 1959, the regulators interpreted the “exclusively” part of the statute to mean groups had to be “primarily” engaged in enhancing social welfare. This later opened the door to political spending.
So what does “primarily” mean? It’s not clear. The IRS has said it uses a “facts and circumstances” test to say whether a group mostly works to benefit the community or not. In short: If a group walks and talks like a social welfare non-profit, then it’s a social welfare non-profit.
This deliberate vagueness has led some groups to say that “primarily” simply means they must spend 51 percent of their money on a social welfare idea — say, on something as vague as “education,” which could also include issue ads criticizing certain politicians. And then, the reasoning goes, a group can spend as much as 49 percent of its expenditures on ads directly advocating the election or defeat of a candidate for office.
Nowhere in tax regulations or rulings does it mention 49 percent, though. Some non-profit lawyers have argued that the IRS should set hard limits for social welfare non-profits — setting out, for instance, that they cannot spend more than 20 percent of their money on election ads or even limiting spending to a fixed amount, like no more than $250,000.
So far, the IRS has avoided clarifying any limits.
2. Donors to social welfare non-profits are anonymous for a reason.
Unlike donors who give directly to politicians or even to Super PACs, donors who give to social welfare non-profits can stay secret. In large part, this is because of an attempt by Alabama to force the NAACP, then a social welfare non-profit, to disclose its donors in the 1950s. In 1958, the Supreme Court sided with the NAACP, saying that public identification of its members put them at risk of reprisal and threats.
The ACLU, which is itself a social welfare non-profit, has long made similar arguments. So has Karl Rove, the GOP strategist and brains behind Crossroads GPS, which has spent more money on elections than any other social welfare non-profit. In early April 2012, Rove invoked the NAACP in defending his organization against attempts to reveal donors.
The Federal Election Commission could in theory push for some disclosure from social welfare non-profits — for their election ads, at least. But the FEC has been paralyzed by a 3-3 partisan split, and its interpretations of older court decisions have given non-profits wiggle room to avoid saying who donated money, as long as a donation wasn’t specifically made for a political ad.
New rulings indicate that higher courts, including the Supreme Court, favor disclosure for political ads, and states are also stepping into the fray. During the 2012 elections, courts in two states – Montana and Idaho – ruled that two non-profits engaged in state campaigns needed to disclose donors.
But sometimes, when non-profits funnel donations, the answers raise more questions. It’s the Russian nesting doll phenomenon. Last election, for instance, California’s election agency pushed for an Arizona social welfare non-profit to disclose donors for $11 million spent on two California ballot initiatives. The answer? Another social welfare non-profit, which in turn got the money from a trade association, which also doesn’t have to reveal its donors.
3. The Supreme Court’s Citizens United decision meant that corporations could pay for political ads, anonymously, using social welfare non-profits.
In January 2010, the Supreme Court ruled that corporations and unions could spend money directly on election ads. A later court decision made possible SuperPACs, the political committees that can raise and spend unlimited amounts of money from donors, as long as they don’t coordinate with candidates and as long as they report their donors and spending.
Initially, campaign finance watchdogs believed corporations would give directly to SuperPACs. And in some cases, that happened. But not as much as anyone thought, and maybe for a reason: Disclosure isn’t necessarily good for business. Target famously faced a consumer and shareholder backlash after it gave money in 2010 to a group backing a Minnesota candidate who opposed gay rights.
Many watchdogs now believe that large public corporations are giving money to support candidates through social welfare non-profits and trade associations, partly to avoid disclosure. Although the tax-exempt groups were allowed to spend money on election ads before Citizens United, their spending skyrocketed in 2010 and again in 2012.
A New York Times article based on rare cases in which donors have been disclosed, sometimes accidentally, explored the issue of corporations giving to these groups last year. Insurance giant Aetna, for example, accidentally revealed it gave $3 million in 2011 to the American Action Network, a social welfare group founded by former Sen. Norm Coleman, a Republican, that runs election ads.
Groups that favor more disclosure have so far failed to force action by the FEC, the IRS, or Congress, although some corporations have voluntarily reported their political spending. Advocates have now turned to the Securities and Exchange Commission, which is studying a proposal to require public companies to disclose political contributions.
The idea is already facing strong opposition from House Republicans.
4. Social welfare non-profits do not actually have to apply to the IRS for recognition as tax-exempt organizations.
With all the furor over applications being flagged from conservative groups — particularly groups with “Tea Party,” “Patriot” or “9/12″ in their names — it’s worth remembering that a social welfare non-profit doesn’t even have to apply to the IRS in the first place.
Unlike charities, which are supposed to apply for recognition, social welfare non-profits can simply incorporate and start raising and spending money, without ever applying to the IRS.
The agency’s non-profit wing is mainly concerned about ferreting out bad charities, which are the biggest chunk of non-profits and the biggest source of potential revenue. After all, the IRS’s main job is to collect revenue. Charities allow donors to deduct donations, while social welfare non-profits don’t.
Most major social welfare non-profits do apply, because being recognized is seen as insurance against later determination by the IRS that the group should have registered as a political committee and may face back taxes and disclosure of donors. A recognition letter is also essential to raise money from certain donors — like, say, corporations.
But some of the new groups haven’t applied.
The first time the IRS hears about these social welfare non-profits is often when they file their first annual tax return, not due until sometimes more than a year after they’ve formed.
In many cases, the first time the IRS hears about these groups is a full year after an election.
5. Most of the money spent on elections by social welfare non-profits supports Republicans.
Of the more than $256 million spent by social welfare non-profits on ads in the 2012 elections, at least 80 percent came from conservative groups, according to FEC figures tallied by the Center for Responsive Politics.
None came from the Tea Party groups with applications flagged by the IRS. Instead, a few big conservative groups were largely responsible.
Crossroads GPS, which this week said it believes it is among the conservative groups “targeted” by the IRS, spent more than $70 million in federal races in 2012. Americans for Prosperity, the social welfare non-profit launched by the conservative billionaire brothers Charles and David Koch, spent more than $36 million. American Future Fund spent more than $25 million. Americans for Tax Reform spent almost $16 million. American Action Network spent almost $12 million.
Besides Crossroads GPS, each of those groups has applied to the IRS and been recognized as tax-exempt. (You can look at their applications here.)
All of those groups spent more than the largest liberal social welfare non-profit, the League of Conservation Voters, which spent about $11 million on 2012 federal races. The next biggest group, Patriot Majority USA, spent more than $7 million. Planned Parenthood spent $6.5 million. VoteVets.org spent more than $3 million.
None of those figures include the tens of millions of dollars spent by groups on certain ads that run months before an election that are not reported to the FEC.
6. Some social welfare groups promised in their applications, under penalty of perjury, that they wouldn’t get involved in elections. Then they did just that.
Much of the attention when it comes to Tea Party nonprofits has focused on their applications and how the IRS determines whether a group qualifies for social welfare status.
As part of our reporting on dark money in 2012, ProPublica looked at more than 100 applications for IRS recognition. One thing we noted again and again: Groups sometimes tell the IRS that they are not going to spend money on elections, receive IRS recognition, and then turn around and spend money on elections
The application to be recognized as a social welfare non-profit, known as a 1024 Form, explicitly asks a group whether it has spent or plans to spend “any money attempting to influence the selection, nomination, election, or appointment of any person to any Federal, state, or local public office or to an office in a political organization.”
The American Future Fund, a conservative non-profit that would go on to spend millions of dollars on campaign ads, checked “No”in answer to that question in 2008. The very same day the group submitted its application, it uploaded this ad to its YouTube account: http://youtu.be/2oEz3lzgDsI
Even before mailing its application to the IRS saying it would not spend money on elections in 2010, the Alliance for America’s Future was running TV ads supporting Republican candidates for governor in Nevada and Florida. It also had given $133,000 to two political committees directed by Mary Cheney, the daughter of the former vice president.
Another example of this is the Government Integrity Fund, a conservative non-profit that ran ads in last year’s U.S. Senate race in Ohio. Its application was approved after it told the IRS that it would not spend money on politics. The group went on to do just that.
By: Kim Barker and Justin Elliott, ProPublica; Published in The National Memo, May 22, 2013
“Hoping No One Will Know The Difference”: Conservatives Shift Gears On IRS To “Income Tax Audits”
Something odd happened to Barack Obama’s approval rating last week: nothing. With a bunch of controversies swirling about the administration, one might think Americans would be thinking less of his performance. Yet the latest polls from Gallup and CNN both show his job approval essentially unchanged, at just at or above 50 percent.
So far anyway, these “scandals” are, like most scandals, an almost completely partisan phenomenon. Yes, there are some—Watergate, Iran-Contra—where the facts are so damning and undeniable that even the president’s own party can’t help but acknowledge them. But Benghazi and the IRS are not Watergate or Iran-Contra. Perhaps they’ll turn out to be, if we find out something completely shocking. Perhaps we’ll discover that Barack Obama is on tape personally ordering the Cincinnati IRS office to put the screws to Tea Party groups, just as Richard Nixon was on tape ordering his aides to get the IRS to audit his political opponents. But that hasn’t happened yet.
So conservatives are trying something new. If you were paying close attention the last couple of days, you saw them bringing up a new charge, one unrelated to the actual controversy: IRS income-tax audits. At first glance that may seem strange. After all, there hasn’t been any evidence that anyone was audited because of their political beliefs or activities. This controversy is about political groups being given undue scrutiny when they applied for 501(c)(4) status as “social welfare” organizations. The part of the agency that carries out those reviews doesn’t audit individuals’ tax returns. Yet here was Peggy Noonan, claiming “The IRS scandal has two parts. The first is the obviously deliberate and targeted abuse, harassment and attempted suppression of conservative groups. The second is the auditing of the taxes of political activists.” The “evidence” for Noonan’s explosive charge is that she read about a couple of conservatives who were among the 1.5 million Americans who were audited by the IRS last year (read Nate Silver for more on how unbelievably stupid Noonan’s allegation is). Here‘s an account of the weekend’s Virginia GOP convention, at which a whole slate of Tea Partiers was selected to run in November’s elections there: “By being here today, every one of you has just signed up for an audit by the I.R.S.,’ Governor Bobby Jindal of Louisiana, a potential 2016 presidential candidate, said in a keynote speech. ‘You are officially now on the White House enemies list.'”
We’ll be hearing more of these stories. Because after all, if 1.5 million Americans were audited last year, plenty of them were conservatives. And plenty of those will be happy to tell their stories to Fox News or Rush Limbaugh or Peggy Noonan. “I signed up for my local Tea Party, and not six months later the IRS came after me!” they’ll say. Some of these stories will be told in high-profile forums, and others in more obscure outlets; for instance, here’s a conservative writer telling her tale of oppression to the Catholic News Agency. During her audit, she says, “They only wanted to talk about who was paying me to do my writing.” Really? “Hendershott said that the questions were not explicitly political, but she interpreted them to mean the agency was ‘wanting to know if there were individuals or groups who wanted me to write to advance their cause.'” Maybe. Or maybe because she’s a writer and they were auditing her income taxes, they were asking her who paid her to write because that’s where she gets her income. Just tossing that out there.
It’s pretty obvious what’s going on here. On one hand, nobody likes the IRS, so people are ready to believe the worst about the agency’s activities. On the other hand, getting your 501(c)(4) application subjected to unusual scrutiny is not something most people can relate to. Even worse, the reporting that’s emerging about the IRS office in Cincinnati (see here) paints a picture not of some coordinated effort at political oppression, but of a bunch of overworked, ill-trained people who barely understood the standards they were supposed to apply to these applications and didn’t get the support they needed from Washington. They ended up acting inappropriately, but it wasn’t a criminal conspiracy, and it didn’t reach up to the heights of power.
For conservatives, that’s not a very satisfying story. But they know that everyone fears getting their tax returns audited. So why not just tell everyone that’s what happened?
By: Paul Waldman, Contributing Editor, The American Prospect, May 20, 2013
“Not Too Smart”: How The IRS Planted The Question That Sparked The Tea Party Scandal
Washington tax lawyer Celia Roady acknowledged that at the behest of the IRS, she asked a question at a May 10 conference that would ignite the controversy over inappropriate targeting of conservative groups.
Four days before a damning Inspector General’s report was due to be released, the IRS wanted to get out ahead and potentially defuse some of the backlash.
Roady serves on the IRS Advisory Committee on Tax-Exempt and Government Entities. She asked the planted question to Lois Lerner, the IRS’ director of the tax-exempt division. Within minutes, it sparked shock and a firestorm that the IRS had revealed it inappropriately targeted certain groups, particularly with the words “Tea Party” and “patriot” in their title.
Morgan, Lewis & Bockius, the firm that employs Roady, released a statement on her behalf explaining her role in asking the question:
“On May 9, I received a call from Lois Lerner, who told me that she wanted to address an issue after her prepared remarks at the ABA Tax Section’s Exempt Organizations Committee Meeting, and asked if I would pose a question to her after her remarks. I agreed to do so, and she then gave me the question that I asked at the meeting the next day. We had no discussion thereafter on the topic of the question, nor had we spoken about any of this before I received her call. She did not tell me, and I did not know, how she would answer the question.”
Outgoing Acting IRS Commissioner Steven Miller confirmed during testimony before the House Ways and Means Committee on Friday that the question had been planted.
That led to intense questioning from members of Congress, who wondered why Lerner did not reveal the news during testimony before the committee on May 8, two days before the conference.
Miller said that the plan had been to simultaneously notify Congress after Lerner’s public admission, but acknowledged that “didn’t happen.”
“She has been directly involved in this matter,” Rep. Sander Levin (D-Mich.) said on Friday. “She failed to disclose what she knew to this committee, choosing instead to do so at an ABA conference two days later.
“This is wholly unacceptable.”
By: Bret LoGiurato, Business Insider, May 18, 2013
“The Nakedly Transparent Flouting Of The Tax Laws”: Washington Misses The Point On The Tea Party And The IRS
My pixels have been absent from these precincts while I report a feature story for The Nation, and I’ll have more to say about the ersatz Scandalpalooza being ginned up by Republicans this week, but for now I wanted to drop a quick word about just how overblown the outrage is about the Internal Revenue Service flagging groups with “Tea Party” in their name for extra scrutiny when they apply for 501(c)(4) status. Jeffrey Toobin, in a New Yorker post called “The Real I.R.S. Scandal,” succinctly explains the legal background:
It’s important to review why the Tea Party groups were petitioning the I.R.S. anyway. They were seeking approval to operate under section 501(c)(4) of the Internal Revenue Code. This would require them to be “social welfare,” not political, operations. There are significant advantages to being a 501(c)(4). These groups don’t pay taxes; they don’t have to disclose their donors—unlike traditional political organizations, such as political-action committees. In return for the tax advantage and the secrecy, the 501(c)(4) organizations must refrain from traditional partisan political activity, like endorsing candidates….
Particularly leading up to the 2012 elections, many conservative organizations, nominally 501(c)(4)s, were all but explicitly political in their work. In every meaningful sense, groups like Americans for Prosperity were operating as units of the Republican Party. Democrats organized similar operations, but on a much smaller scale. (They undoubtedly would have done more, but they lacked the Republican base for funding such efforts.)
So the scandal—the real scandal—is that 501(c)(4) groups have been engaged in political activity in such a sustained and open way.
Just how sustained and open a way? Well, in June of last year I reported from the closing weekend of the recall campaign against Republican governor Scott Walker of Wisconsin:
I drive to a microscopic town next to Racine, where a giant open field was a stop on the bus tour in which Americans for Prosperity, the fake grassroots group that fronts for the Koch Brothers, was shipping supporters from, among other places, Illinois, to these here rallies around the state. Not, they claim, to support the Walker campaign—that would violate election law—which they had nothing to do with, but just in the interest of “educating folks in the importance of the reforms.”
The three hundred or so (though National Review counts differently than me) white people—and one black, who stood precisely in the center of the front row and wore an AFP staff T-shirt—heard an AFP staffer hosanna “economic freedom, limited government, and lower taxes.” And that “even Barack Obama’s Bureau of Labor Statistics” said “we’ve created jobs in Wisconsin.” Then he introduced as an “honorary Wisconsinite,” the head of Americans for Prosperity—Wisconsin, Tim Phillips—a Southerner who made a joke about frigid weather. Apparently reverse carpet-bagging is a signal feature of this “grassroots” movement.
Then a third speaker, but I had already wandered off, bored by the conspicuous lack of energy, past a sign reading “Republican’s Are Makers Democrats Are Takers” [sic, of course], and tables featuring free DVDs on both the glories of Scott Walker and the United Nation’s plan to enslave the United States, in the direction of a second, entirely separate, stage across the field put up by the Racine Tea Party. A few minutes later, the rest of the crowd followed me there. For, yes, an entirely separate rally, which had “nothing” to do with the nonpartisan one two hundred yards away that had just ended [wink wink, nudge nudge]. There they heard Walker’s running mate Rebecca Kleefisch rant about the “big union bosses from out of state,” and how the unions were just like Goliath, and her boss was exactly like David.
Me, I fingered my slick Americans for Prosperity—Wisconsin flier, which I later noticed contained the most revealing typo in the history of politics. “The forces of BIG GOVERNMENT would like nothing more than for you to DO NOTHING,” it warned, but promised, “We are gathering citizens together from across Michigan to make phone calls, knock on doors and educate their friends, family and neighbors.”
As Toobin points out, this is the real scandal: the nakedly transparent flouting of the tax laws by groups claiming to be nonpolitical and nonpartisan. Count on the media in Washington to entirely miss that obvious point.
By: Rick Perlstein, The Nation, May 16, 2013
“Doing More With Less”: Outgoing IRS Chief Blames Underfunding For ‘Foolish’ Mistakes
Testifying in front of the House Ways and Means Committee, acting IRS commissioner Steve Miller apologized for his agency Friday.
“I want to apologize on behalf of the Internal Revenue Service for the mistakes that we made and the poor service that we provided,” Miller said. “The affected organizations and the American public deserve better.”
Agents at the IRS decided to take a shortcut in 2010 that has created an uproar, “centralizing” a number of factors that could raise suspicions that these fledgling non-profits might not be focused primarily on ”social welfare.” One of those factors — and here’s where they made their biggest mistake — was focusing on groups with “Tea Party” or “Patriot” in their names. Later they revised this policy to focus on “political action-type organizations involved in limiting/expanding government, educating on the Constitution and Bill of Rights, social economic reform movement,” according to the IRS Inspector General’s report.
The result? Some 300 groups were identified for extra scrutiny — among them, 70 were Tea Party groups. It’s not clear how many groups were turned down, yet it’s clear at least one Democratic group was.
Miller — who is stepping down from his position at the request of the administration — insisted that the actions were not intended to target conservatives.
“I think that what happened here was that foolish mistakes were made by people trying to be more efficient in their workload selection,” he said. “The listing described in the report, while intolerable, was a mistake, and not an act of partisanship.”
Under questioning by Rep. Paul Ryan (R-WI), Miller pointed out that though progressive groups were not identified by name, the IRS actually collected more information on left-leaning groups than Tea Party groups. The lifelong bureaucrat even rejected the notion that his agency was “targeting” anyone, insisting that was a pejorative term to describe the “listing” the agents were doing.
Republicans continually tied the scandal to attacks on the IRS in general, often citing audits by their supporters as proof of the agency’s overreach.
“The reality is this is not a personnel problem. This is a problem of the IRS being too large, too powerful, too intrusive and too abusive of honest, hardworking taxpayers,” said Rep. Dave Camp (R-MI).
But Miller had another explanation for why his agents pursued such questionable practices — funding. The commissioner asked the committee to increase funding to his agency, citing budget constraints as a major reason why agents sought shortcuts to identify questionable applications.
“In the last 10 years, the budget of the IRS, adjusted for the size of the population and inflation, has come down 17 percent,” according to tax expert David Cay Johnston.
Committee members offered several examples of groups being denied 401(c)(4) status or delayed endlessly. However, there’s no evidence that suggests Republican spending was hindered by this IRS’s shortcut.
“Of the 21 organizations that received rulings from the IRS after January 1, 2010, and filed FEC reports in 2010 or 2012, 13 were conservative,” writes OpenSecretsblog‘ Robert Maguire. ”They outspent the liberal groups in that category by a factor of nearly 34-to-1, the Center for Responsive Politics analysis shows.”
By: Jason Sattler, The National Memo, May 17, 2013
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