By now, the timeline is familiar. On January 21, 2010, the United States Supreme Court ruled in Citizens United vs. FEC that certain provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA) unconstitutionally infringed on political speech protected by the First Amendment. Six days later, in his first State of the Union address, President Obama chastised the Supreme Court for the decision, claiming it would “open the floodgates for special interests - including foreign corporations - to spend without limit in our elections.” Attracting more attention in the mainstream media than this calumny was Justice Alito’s shocked reaction to it. Sitting silently (as they must) in the front row with five other Justices, he was seen to shake his head in disbelief, and appeared to mouth the words “not true.”
In the months that followed, two parallel tracks of activity occurred. On one, President Obama gave speeches castigating the Citizens United decision, and saying that, because of it, shady organizations with innocent sounding names would crop up and attempt to influence U.S. elections. Without the President having had to resort to pen or phone, government employees understood their marching orders. Be on the lookout for these shady organizations with innocent sounding names.
On the other track, Americans around the country were reacting with horror at the rapidity with which freedom in the U.S. was being stripped away. Without a single Republican vote in the House or Senate, leftists’ dream of nationalizing how Americans get and pay for health care, representing one-seventh of the national economy, had been achieved. Liberty-loving people got together and formed local groups to study and educate the public on America’s founding documents. They applied for tax-exempt status for their groups.
The 2010 elections came and went. The 2012 elections came and went. The applications for tax-exempt status for the groups hoping to spread the word about how the U.S. government is supposed to work languished. Well, not really languished. Many sat unattended. But others were the subject of unprecedentedly intrusive questions from the IRS officials processing the applications. Many dozens of groups, appalled by the questions, answered them anyway, hoping to be granted tax-exempt status. To no avail. Grants of tax-exempt status were not forthcoming.
On May 10, 2013, in response to a planted question at an ABA meeting, IRS Exempt Organizations official Lois Lerner admitted the IRS had targeted conservative groups for additional scrutiny. The admission was timed to beat the release which was scheduled for, and which did occur, the following week, of a report by the Treasury Inspector General for Tax Administration that the IRS had, indeed been targeting tea party groups.
True the Vote and Linchpins of Liberty were among the hundreds of conservative groups caught in the IRS’ effort to administratively neuter the Supreme Court’s 2010 Citizens United decision. On their own behalves, and joined by other similarly victimized groups, each sued the IRS in the United States District Court for the District of Columbia. On October 23, 2014, United States District Judge Reggie Walton dismissed their suits, on the grounds, among other things, that they had failed to state a claim upon which relief could be granted. He also ruled that, the IRS having finally, after the litigation commenced, granted the applicants tax exempt status, the case or controversy had ended: the cases were moot.
Not so, ruled the United States Court of Appeals for the District of Columbia Circuit. In a unanimous opinion by Senior Judge Sentelle, the court noted that the IRS had merely “suspended” its use of the be-on-the-lookout methodology, and had yet to act on all the applications snagged in that trap. Accordingly, the IRS had not carried its burden of proving that it had ceased to engage in the activity complained of. The case is remanded to the District Court for proceedings consistent with the opinion.
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