The IRS: Worse than Profiling
The targeting of conservatives cannot pass constitutional muster.


Daniel Foster

Rare among left-of-center commentators — many of whom quickly, if briefly, condemned the IRS’s targeting of conservative groups — Ezra Klein has penned a conflicted defense of the practice. Klein says that the IRS “needs some kind of test that helps them weed out” groups that deserve extra scrutiny in their applications for tax-exempt status. Although he says this test should be “studiously, unquestionably neutral” and applied to groups all along the political spectrum, he also admits that it will by nature be “a bit impressionistic” in its search for “shortcuts.” In the current case, Klein says, the IRS flagged groups with the words “tea party” or “patriot” in their names, as well as groups critical of government or the debt, because there had been a surge in applications tied to the rise of conservative grassroots activism. So, “like Willie Sutton robbing banks, [IRS auditors] were going where the action was.”

At first, my thought was that Klein’s defense read like a conflicted defense of certain other kinds of profiling in law enforcement. But that’s not quite right. Defenders of police profiling are apt to say similar things about the need for “shortcuts” to “weed out” criminal activity, and even to admit that such shortcuts are “a bit impressionistic” and liable to yield false positives. But profiling in law enforcement usually happens against a mix of localized knowledge and statistical indicators about the kinds of people likeliest to commit crimes. The moral and legal arguments proceed from there: Are the stats flawed? Are the police secretly bigots? Is race, for instance, really a replacement for more predictive socioeconomic variables? But profiling at least starts from an evidence-based claim — “impressionistic,” statistical, or otherwise — that targeting certain groups will net you more criminals.

By contrast, neither Klein’s partial defense nor the explanations offered by IRS officials cite any ex ante evidence that the kind of groups targeted had improperly filed for, or run afoul of, exemption rules in any greater proportion than, say, groups that sprang out of Occupy Wall Street. Klein says only that after Citizens United, the number of groups registering for 501(c)(4) status doubled, and that since that doubling coincided with the rise of the Tea Party, that was the natural place to look for abuse of the tax code. That’s not like saying “Be on the lookout for young black males, because they are statistically more likely to commit violent crime.” It’s like saying “Be on the lookout for young, black males, because there are more of them than there used to be.” The former is rooted in a hypothetical bias, or a conditional: If young black males are more likely to commit violent crimes, then it makes sense for law enforcement to give them extra scrutiny. The latter comes closer to categorical bias: Conservative groups are to be scrutinized because there are more conservative groups than there used to be, which is a way of saying that conservative groups per se are suspect (otherwise, why would having more of them raise suspicion?).

This is not just foolish and offensive, it’s also blatantly unconstitutional. Not only is the targeting a violation of these groups’ First Amendment rights, it is a violation of the most carefully protected class of speech: core political speech, which the ourts have again and again recognized as central to the very functioning of the Republic. It makes little difference whether the IRS’s intention was to chill speech; it chose a tool likely to have that effect.

Such “viewpoint discrimination,” as it is known in jurisprudence, is “virtually per se unlawful,” according to constitutional litigator and NRO contributor Shannen Coffin. That is, it is such a pernicious subclass of free-speech restriction that it is all but unjustifiable by definition. Particularly, one would think, when the discriminator publicly admits to it. But even the broader class of “content-based” (as opposed to “content-neutral”) speech discrimination is subject to the judicial standard of “strict scrutiny,” the highest bar the Court sets for justifying the infringement of constitutional rights.

Discrimination subject to strict scrutiny must serve a “compelling governmental interest.” It must be “narrowly tailored” to achieve that interest, and it must be the “least restrictive means” for doing so. One supposes — though as a conservative, one is sometimes loath to admit — that the collection of taxes constitutes a compelling government interest. But any hopes that the IRS actions can pass constitutional muster dies abruptly there. For free-speech infringement that can be fairly described as a “shortcut” can be narrowly tailored or minimally restrictive in achieving that end. When the First Amendment is in play, better to take the long way, even if the IRS’s 90,000 employees have to work a little overtime.

Daniel Foster is NRO’s news editor.