Most of us are bemused by the types of news stories that tend to draw attention to our small corner of the world: Some girls decide to take a bath in the kitchen sink at a local KFC—turning it into a hot tub shame machine—post pictures on Facebook, and America collectively responds: Even Kentucky’s hillbillies wouldn’t do that. A local Tea Party guy tells our congressman that he’s a “proud right-wing terrorist” and our congressman responds, “Amen, God bless you. There is a great American.” On the tarmac of our municipal airport, Donald Trump points to a local would-be politician and says, “Look at my African-American over here.” (Actually, that last one sounds positively quaint compared with some of Mr. Trump’s proclamations since his Redding visit.)
But hey, sometimes we make big-timer news on substantive issues!
Maybe you recall the claim that applications for non-profit status submitted to the IRS by conservative organizations were being subject to levels of scrutiny reserved solely for groups with conservative-sounding names. The IRS countered that it wasn’t singling out conservative-sounding names, but groups that it suspected functioned more as political action groups (which are not tax exempt) rather than beneficiaries of the public trust. The IRS reasoned that it wasn’t their fault that it was Tea Party-related groups that had submitted an avalanche of non-profit applications.
The court ruled that the IRS’s “be-on-the-lookout” rules of thumb for identifying such groups were indeed discriminatory, but that the ruling was “moot” because the IRS had since ceased the discriminatory practice.
A local conservative group, the NorCal Tea Party, is still suing the IRS over this issue. And just the other day, they won a big victory in the D.C. Court of Appeals, which ruled that their lawsuit can proceed. One of the group’s leaders, Sally Rapoza, published an op-ed in the local fishwrap celebrating the decision.
Sally says: “The American Center for Law and Justice pointed out that the IRS argument (that the NorCal Tea Party’s lawsuit should be dismissed) was absurd, and that it had failed miserably to meet its burden to demonstrate that it had voluntarily ceased the allegedly discriminatory conduct.”
Not so fast, Mustang Sally. The Court of Appeals didn’t actually say that the IRS had “failed miserably.” The court said that its decision turned on whether the original court decision was actually “moot” in that the IRS had already corrected its practice of unequal treatment (“voluntary cessation”). The court said that the IRS had a “heavy burden” to establish that the discrimination had ended in order for the original decision to be moot. The court concluded that the IRS had not met this heavy burden, because two groups (out of thousands) were still being slow-rolled. Ms. Rapoza’s NorCal Tea Party was one of those groups.
In the Court of Appeals’ words: “We would advise the IRS that a heavy burden of establishing mootness is not carried by proving that the case is nearly moot, or is moot as to a ‘vast majority’ of the parties. Their heavy burden requires that they establish cessation, not near cessation.”
Thus, the portion of the original court decision that was set aside was the “mootness” bit.
The IRS had argued that the last of the pending applications for non-profit status had been put on ice because the groups had filed suit against the IRS, and it was “longstanding policy” to put applications on hold when lawsuits were progressing—the theory being that the issue would be settled in court, per the litigants’ apparent desires. The Court of Appeals rejected that argument, saying that just because it’s a “longstanding policy” doesn’t make it legally defensible. The court also issued an amusing allusion to the Joseph Heller novel, “Catch-22.” (The dry lawyerliness of court opinions make flashes of wit stand out like the red wine you just spilled on your boss’s off-white carpet.)
As you may recall from the novel or movie, Catch-22 is a circular rule regarding mental fitness to fly bombing missions. If you’re crazy, you don’t have to fly. But you have to apply for the bat-shit exemption to be relieved of flying the almost suicidal missions—and applying demonstrates that you’re not crazy. As a result, you must continue flying, either not seeking to be excused, or applying and being refused on the grounds that you’re obviously sane.
The IRS’s Catch-22, according to the Court of Appeals: You may have a legal right to be a non-profit, but not if you sue to be a non-profit.
Fine. But I have to ask the leaders of our NorCal Tea Party: Why keep the lawsuit alive when other Tea Party non-profit applications are being processed post haste? If I were a Tea Party organization, I’d want to achieve non-profit status ASAP, and by the demonstrably quickest route available. Is your goal to achieve non-profit status? Or is it $omething el$e?
I ask that last question because Forbes ran an op-ed back in January entitled: “NorCal Tea Party Patriots v IRS — Grassroots or Astroturf?” “Astroturf” is a pejorative that essentially means “fake grassroots,” and suggests that there may be some big money behind the NorCal Tea Party lawsuit. Sure enough, the suit is being bankrolled by “Citizens for Self Governance” (not a party to the IRS lawsuits), a group that has been tied to The Kochtopus (the long tentacles of the billionaire Koch brothers’ funding network). In exchange for letting outsiders fund and champion the lawsuit and delaying the process of achieving its non-profit status, wouldn’t you like to know what our local Tea Party organization is getting in return?
As Tea Party conservatives themselves are so fond of saying: Follow the money.
Philip Fountain is a cartoonist, better known as “Philbert,” who currently draws and writes for DodgersBluePen.com, a website dedicated to the only baseball team that matters, The Los Angeles Dodgers.