The Information-Revealing Service

by Ian Tuttle
Were a pro-marriage group and its donors targeted by IRS employees?

You do not have to believe in the Templar treasure, chemtrails, or a second shooter on the grassy knoll to believe that what John Eastman is describing is rife with the ingredients of a government intrigue.

Eastman is Henry Salvatori Professor of Law and Community Service at Chapman University, in Orange, Calif. Since September 2011 he has also been chairman of the board of the National Organization for Marriage, a group that advocates for traditional marriage. Testifying on Tuesday, June 4, before the House Ways and Means Committee about NOM’s mistreatment at the hands of the IRS, Eastman laid out a scheme to rival any Dan Brown novel.

On March 30, 2012, the Human Rights Campaign — NOM’s chief political opponent — published on its website, under the headline “One of NOM’s Top Secret Donors Revealed: Mitt Romney,” NOM’s 2008 Form 990 Schedule B, which contained the names and addresses of the organization’s major donors. HRC shared the document with the Huffington Post, which published it that same day. The document — which HRC said it had received from “a whistleblower” — would subsequently appear on a number of sites, among them New York magazine, Mother Jones, and the Daily Beast.

What makes NOM’s case unusual is this: The National Organization for Marriage has been operating as a nonprofit since 2008, so, as Eastman points out, it is not like the dozens or hundreds of conservative groups whose applications for tax-exempt status after Obama became president have led to invasive questioning, home visits, and audits. Rather, when it comes to IRS abuse, NOM is in a league of its own: As-yet-unknown IRS personnel may have dug into the records of NOM specifically and leaked confidential tax documents to its principal political opponent.

Scrolling through the document that appeared at the Huffington Post, NOM employees noticed that at the center of the page, a number flickered on the screen before disappearing behind a white box. Travis Phillips, information-technology guru for ActRight Legal Foundation, NOM’s legal counsel, discovered that the posted document was composed of several invisible “layers” — “like transparencies on a projector,” he explains. Phillips was able to isolate the layers and expose beneath the white box a hidden document identification number, 100560209.

While working with the document, Phillips also noticed that the “canvas” — the background on which the image is set and which acts like a frame, determining how much of the image is visible and invisible — had been shrunk, effectively cropping the document. But rather than cutting off the margins, shrinking the canvas had merely hidden them. Expanding the canvas, Phillips discovered at the top of each page the words “THIS IS A COPY OF A LIVE RETURN FROM SMIP. OFFICIAL USE ONLY.” According to the Internal Revenue Manual, Section 3.11.12.1.26 (January 1, 2012), that phrase is a header that the IRS’s Central Information System stamps on e-filed documents.

Does that prove that the leak came from the IRS? Not necessarily, though it does appear to prove that the document was in IRS custody. Are there alternative scenarios? NOM can come up with one: A rogue NOM officer (officers are the only members of the organization with the authority to access tax information) could have requested the document from the IRS and leaked it. But Eastman is pretty sure it was not a mole. He has sworn affidavits from all of NOM’s officers, and the IRS has no record of any request for the documents in question.

But NOM is not getting any help finding out. In an April 2012 letter to Treasury Inspector General for Tax Administration (TIGTA) J. Russell George, whose report has been at the center of the ongoing IRS investigation, NOM set forth its allegations and called for an investigation. NOM received confirmation that an investigation had begun, and the organization was provided a complaint number. One year later, having heard nothing — except for confirmation that the leak had not come from within NOM itself — NOM sent a letter to the TIGTA Disclosure Branch requesting to know whether the investigation was still going on. On May 3, citing confidentiality provisions of the Internal Revenue Code, TIGTA responded that it “can neither admit nor deny the existence of any records responsive to your current request.”

That investigation could help to determine whether the impetus for the leaks came from within the IRS or from elsewhere. Eastman notes that one month before the leak, Joe Solmonese, HRC’s outgoing president, was tapped by the Obama reelection campaign to fill one of 35 national co-chair positions. “Then all of a sudden,” Eastman told Cavuto, “magically, our donor list shows up on their [HRC’s] website.” For NOM, then, “the central question is, did the IRS do it on their own, or was this part of a broader effort with campaign involvement?” It was very likely a coincidence — but an investigation is what NOM needs, and an investigation is what seems not to be happening.

If NOM is correct about IRS malfeasance, the personnel responsible have committed a felony punishable by a fine of up to $5,000 or up to five years in prison. But a prison sentence will not recoup what NOM has already lost. Eastman says that the leaks have had a “chilling” effect. He told Fox News’s Neil Cavuto, “We’ve had donors tell us that they’re afraid of donating to this cause for fear of their businesses being attacked, their families being targeted, their property vandalized.” In addition to those who have contacted NOM to express concerns, Eastman tells National Review Online, “We don’t know how many people have decided not to donate to us because of this.”

The leaks are yet another example of the “climate of fear and intimidation” that traditional-marriage opponents have created in recent years, says NOM’s national political director, Frank Schubert. “In 35 years in politics, I have never seen anything like it. Donors called at home, called at work, harassed, their employers harassed.”

The 2012 leak was not the first time that NOM’s donor information has been made public. In 2008 a map appeared online showing the name and address of every person nationwide who had donated $100 or more toward passing California’s Proposition 8, which would have amended the state’s constitution to recognize “only marriage between a man and a woman.” Schubert headed NOM’s Proposition 8 campaign, and he says that the abuse directed toward supporters was “unprecedented.” He recalls a Los Angeles woman who gave just $100. In retaliation, opponents protested outside the Mexican restaurant she managed until she quit.

Still, many defenders of traditional marriage refuse to be cowed by attempts to shame or intimidate them. After its donor lists were leaked last year, NOM set up Keep the Republic and Marriage, a website that encourages donors to give to NOM and publicly state their support for traditional marriage. The list currently has more than 1,400 names.

Sean Fieler’s name was among those made public by the leaked NOM documents. His name is now first at Keep the Republic and Marriage. Says Fieler, “Intimidation and silence are what are allowing the other side to win. While we absolutely want to respect the right of people to give to NOM privately, we also want to encourage those people who are willing to be public in their support.”

Fieler has never been the subject of attacks, but he says that many of his fellow NOM donors have been less fortunate. “It’s terrifying what they’ve done when they single out individual donors and attack them. If this proves to be a valid model for winning a political fight in America, we’ll have even more problems.”

Terrifying, indeed. But what is worse — what should alarm not just traditional-marriage proponents, but every American — is that if NOM’s conjecture is right, government officials, possibly in collusion with the president’s reelection campaign, exploited the powers of the federal apparatus to crush ordinary citizens who were only exercising their constitutional rights.

At the June 4 Ways and Means hearing, Washington congressman Jim McDermott sneered that “Republicans are looking for a conspiracy where there isn’t one.” Connect the dots, congressman. It’s not paranoia when they’re really out to get you.

— Ian Tuttle is an intern at National Review.

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