A House committee investigating the Internal Revenue Service’s targeting of right-leaning groups has identified the IRS agent who leaked the confidential donor list of the National Organization for Marriage, a conservative organization that opposes gay marriage. NOM’s donor list, contained in a Form 990 Schedule B, which it is required by law to file with the IRS, was obtained in March 2012 by its chief political opponent, the Human Rights Campaign, and subsequently became the subject of several national news stories that centered on Republican presidential candidate Mitt Romney’s donation to the group.
Though the House Ways and Means Committee, which began investigating the scandal in the wake of revelations that the IRS had inappropriately singled out conservative groups, has identified the individual who divulged the information as an employee in the IRS’s Exempt Organizations Division, it can’t divulge his name to the public or to NOM. It can’t even confirm when the leak took place, whether the perpetrator was disciplined, or even whether he is still employed by the IRS or the U.S. government. That’s because of a peculiarity of the Internal Revenue Code’s section 6103, which is intended to protect the confidentiality of taxpayer information. The law makes it a felony to disclose tax returns or related information to the public, but in an odd twist, the results of investigations conducted by congressional committees or by inspectors general are considered the confidential tax information of the alleged perpetrator.
Having committed a felony by disclosing NOM’s donor list, the perpetrator is protected by the same law he broke. “I am astounded at the ease by which an individual was able to obtain and release confidential information including private citizens’ names and addresses,” House Ways and Means Committee chairman Dave Camp (R., Mich.) tells National Review Online. “What makes the situation even worse is that the law, intended to protect taxpayers, is being used as a shield for those that perpetrate this wrongdoing.”
NOM’s confidential Schedule B was cited and posted publicly in a March 30, 2012, report on the Huffington Post and quickly spread to outlets including the Daily Beast and New York magazine. The emergence of Meisel, a 2007 graduate of Harvard University, and his connection to Romney’s firm may shed light on the motivation behind the leak, which was used to hammer Romney for supporting California’s Proposition 8.
In the midst of the presidential election, the Huffington Post cited NOM’s donor list, which it had obtained from the Human Rights Campaign, in a story arguing that Romney, through his super PAC, had donated thousands of dollars to NOM just weeks before California voters went to the polls for a referendum on Proposition 8, the ballot initiative that banned same-sex marriage in the state. Though Romney had made no secret of his opposition to gay marriage, the Huffington Post said that by making the donation through his PAC, he had taken pains to conceal his financial backing of the controversial initiative. (All of the PAC’s expenditures and donations were publicly available information.)
The document leaked by the anonymous IRS employee contained the names and addresses of all those who gave money to NOM in 2007. In testimony before Congress, NOM chairman John Eastman accused the IRS of publicizing the list “to facilitate the intimidation of donors.” He talks of a “campaign of harassment and intimidation” against the organization’s financial backers that has included boycotts of their business, physical assault, and the vandalizing of private property.
Now, he tells me, “A number of donors are concerned about their names being disclosed.” He said in his testimony that the harassment “has now pervaded across the nation every time our donor list is disclosed to the point that our donors tell us ‘We are fearful of giving money to you to help support the cause that we believe in because our businesses and our family are at risk.’”
The Supreme Court ruled in the landmark 1958 case National Association for the Advancement of Colored People v. Alabama that organizations like NOM have the right to keep their membership and donor lists private. Alabama, after seeking to banish the NAACP from the state, demanded a list of the group’s members, including their names and addresses. The Court ruled that forcing private groups to disclose that information interfered with their ability to “pursue their lawful private interests privately and to associate feely with others” and violated the Fourteenth Amendment. “It may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure,” wrote Justice John Marshall Harlan.
Eastman, in this case, is calling for more from the government: He wants the Department of Justice to prosecute both the unnamed IRS leaker and Meisel, the recipient of the leaked documents. “This should be a relatively simple matter,” he says. Also a professor of constitutional law, Eastman is point-blank. As if reading from the statute itself, he tells me, “Any person who inspects or discloses a tax return and knowingly is not authorized to have it is guilty of a felony, and we expect the Department of Justice to seek an indictment.” Only if Eric Holder’s DOJ does take up the case will the veil of privacy and the protection afforded by section 6103 be lifted.
— Eliana Johnson is media editor of National Review Online.