In John Fund and Hans von Spakovsky’s excellent new book, Obama’s Enforcer: Eric Holder’s Justice Department (I reviewed it here), they outline a disturbing DOJ/EPA racket called “sue and settle.” The racket is simple, unethical, and fiendishly effective.
It works like this: An outside, ideologically sympathetic advocacy group (usually leftist environmentalists) sues to demand that the federal government take certain regulatory action. Rather than fight the lawsuit, the government settles, not only agreeing to the leftists’ demands and enacting new regulations but also agreeing to pay the group’s attorneys’ fees in amounts that cumulatively run into the millions of dollars. If you want chapter and verse of the worst examples, read this comprehensive Chamber of Commerce report.
This process is win/win for the EPA, allowing it to enact new regulations without even going through the cursory formalities of the regulatory process while it enriches its friends (including past and future employers) in the nonprofit environmentalist industry. Simply put, the fix is in.
Why do I bring this up? When I read the initial and follow-on reports of the IRS’s recent agreement with the Freedom from Religion Foundation to step up monitoring churches, I detected a whiff of the same kind of “sue and settle” corruption that’s plaguing the DOJ and EPA. Many of the same signs are present. After all, the IRS’s campaign against conservative free speech is now well known, the Freedom From Religion Foundation’s suit simply asks for the IRS to extend efforts against the same disfavored viewpoints, and the IRS ultimately responds by giving assurances so extreme that they even please the anti-Christian radicals at the Freedom from Religion Foundation.
Further, by providing assurances in response to a federal lawsuit, the IRS gains crucial political cover. “We’re not discriminating,” they can argue. “We’re minimizing taxpayer liability and responding to external litigation.” But the result is the same: The IRS targets even more conservative speech.
The IRS did at least try to initially dismiss the Freedom from Religion Foundation’s lawsuit, but this was followed by what appears to be an effort to reach a secret agreement with angry atheists. So the initial resistance crumbled, and now an atheist group known for making wildly unconstitutional demands on religious expression is crowing about a great “victory.”
There’s an old legal joke that goes something like this: “A good lawyer knows the law. A great lawyer knows the judge.” But you don’t even have to know the law or the judge if the partisan government you “sue” shares your leftist agenda. Then you can be the best lawyer of all: victorious without a fair fight.