The Intimidation Game (12 page)

Goehausen in the fall started reviewing every application, making notes on each to send back to Cincinnati. Her notes reflect an agency that by this point had completely lost the plot. Goehausen explained in an e-mail to Cindy Thomas that her goal was to separate “good” groups from those that were “just making inflammatory, emotionally charged statements without any factual support” (in her view). She later told Congress she had combed them for “propaganda,” which she described as “a kind of inflammatory, emotionally charged statement” that tried to sell the public on an issue “by only being one-sided and not giving—not discussing both sides of an issue.” This was a remarkable new standard for an agency that had happily bestowed tax-exempt charitable status on Media Matters for America, an organization that has the stated mission of “comprehensively monitoring, analyzing and correcting conservative misinformation in the U.S. media.”

Goehausen went to town. Some applications, she noted, were “anti-Obama.” Some were “primarily emotional.” Some contained “apparent political campaign activities (ie negative Obama commentary).” In communications with colleagues, Goehausen debated ways of rejecting groups that gave her unpleasant sensations. “I think there may be a number of ways to deny them.…This sounds like a bad org :/…This org gives me an icky feeling.”

As Goehausen performed her “triage,” the insane pressure from liberal groups on the IRS to act against conservative nonprofits mounted. Independent groups flooded the agency with complaints. The media for its part trawled through 2010 midterm spending statistics, launching wild claims about tax-exempt abuse. Washington still hadn't finished its test cases, but Goehausen sent along her comments as well as a “guide sheet” for Cincinnati to process its backlog. The sheet laid out the types of information Washington expected Cincinnati to elicit from Tea Party groups in the process of deciding on their applications. Thomas in January 2012 assembled a team of agents, who would use the guide sheet and comments to draft long letters demanding reams of information from each of the now 170 Tea Party groups sitting in the queue. Those letters went out in February. And that's when all hell broke loose.

Karen Kenney
sat staring at the IRS interrogatory she'd received in February 2012 and instantly decided to send it to Dawn Wildman, one of the founders of the California Tea Party movement, and a woman Kenney had been in contact with since she first revved up her own group. “Dear Dawn, this is a heads-up for an envelope I sent you tonight,” ran Kenney's e-mail. She described the IRS questionnaire she'd received as “chilling, intrusive and very personal,” and posited that it likely “violates at least two First Amendment rights.” She asked if Wildman knew if “this level of questioning is standard practice.” Kenney cautioned that she was only sending her concerns to Wildman, and not to all the leadership groups, because she didn't want to “terrify” anyone else “seeking non-profit, federal tax-exempt status.”

She needn't have worried. Wildman was getting similar e-mails and calls from everyone, and not just from groups in California. By late February, in fact, the Tea Party network was alive from coast to coast with outrage and confusion over the IRS letter dump. Some particularly active Tea Party heads—Toby Marie Walker of Texas's Waco Tea Party, and the heads of several Ohio liberty groups, like Tom Brown and Tom Zawistowski—threw together a conference call for February 28 so that groups could share stories. The invitation was classic grassroots, a mixture of outrage, helpfulness, and respect for the autonomy of local groups. “Dear Tea Party and/or Grassroots leader, Recently you may have read about the IRS sending outrageously intrusive and intimidating letters to Tea Party and other grassroots organizations.” They announced that group leaders across the country had realized they were under assault, and were organizing a conference call to serve as a “strategy and brainstorming session.” They cautioned, “We will not be giving legal advice, we are not attorneys, or accounting advice, we are not CPA's.” And they reassured, “We are not looking to form an organization or create a top down group. We are simply trying to gauge the actual scope of the problem and formulate a coordinated and effective response to it.”

Tea Party leaders also immediately organized an effort to collect and collate all the IRS questionnaires. They sent out an e-mail form that requested the correspondence, noting that the goal was to put it in a “private repository with the only access being possibly attorneys, Congressmen and their staff and any other person or entity who may need to see the original documents. Since all documents received so far [have instructed] to send information to the same P.O. Box number this could be extremely relevant.” Already the groups had realized that this effort appeared to be centralized.

Kenney rearranged her client appointments so she could join the conference call. She almost didn't make it on. Call organizers had made room for ninety-nine participants; they were maxed out within minutes. Outraged Tea Party leaders swapped stories and suggestions for an hour and a half. Several groups admitted they'd already responded to the IRS, on the advice of tax accountants and on fears that noncompliance might result in an audit. One participant had already mailed back a nine-hundred-page response. They broadly agreed to contact Congress, compile the repository of information, and go public to the media. And they decided they needed legal advice.

Kenney had already sent her questionnaire to radio host Mark Levin. Others reached out to Glenn Beck, and to Erick Erickson at the popular
Red State
website. Calls started to flood into House and Senate offices.

Kenney meanwhile faced a tough decision. Several groups in Ohio and Texas had declared on the call their intention to refuse to comply with IRS demands, on the grounds that they were being unfairly targeted. Others had recommended seeking out a lawyer to ask advice. Kenny resolved to put in a call to her own attorney. In the meantime, she wrote an e-mail to her leadership team, soliciting their thoughts: Should she write the IRS a refusal letter (
in all my copious spare time
)? Should she send a message to the government?

She didn't have to make that decision in the end. She jumped on a second national call, the very next day—this one featuring Jay Sekulow. Sekulow is the longtime chief counsel of the American Center for Law and Justice (ACLJ), which was set up in 1990 by evangelical minister Pat Robertson as a conservative counterweight to the American Civil Liberties Union. It specializes in taking up conservative legal causes, with a particular focus on the First Amendment's guarantees of religious liberty and free speech. Sekulow became chief counsel more than twenty-three years ago, and over those decades earned a reputation as a tough litigator, one who has had his share of trips to the Supreme Court.

Sekulow remembers his office started getting calls as soon as the questionnaires hit, and he quickly agreed to get on a national call. “The purpose of that call was to say that we needed a unified response, that we were going to stand together in pushing back against questions that were not within the scope of legitimate inquiry,” he recalls. He was also interested in figuring out “who in the world was triggering this.” Sekulow started his career as an IRS trial attorney, and he is familiar with tax-exempt issues. To him, “It was clear this was not coming from a local agent. No agent would look in the manual and ever see this kind of questioning. So it was clear right off to me that something else, bigger, was going on.”

Sekulow on that call offered to represent those hit by the interrogatories. At a practical level, this meant that ACLJ attorneys would help to pilot groups through the process, advising them on what they did need to provide, what they didn't, and how to deal with the IRS. He also reassured participants that ACLJ's representation would help protect against IRS retaliation. He even suggested that the IRS letters might be grounds for a civil rights lawsuit, given the questions about donors and what appeared to potentially be an effort by the federal government to get access to the Tea Party's membership rolls. Because Sekulow was astounded: “In thirty-five years of law I've seen laws that were poorly written and violations of free speech because regulations were poorly imposed. But I'd never seen a deliberate case of targeting of a political group by the government in all my years. This was the NAACP; it was the same playbook.”

By the time of that call, Kenney had already been sitting in her garage for hours, sorting through handouts and files, along with hours more of lugging things off to make copies and put in order so as to comply with the IRS questionnaire. She was coming up on the extended deadline and so decided to just send her reply in.

Before she'd even mailed it, she got slammed with a second round of questions. (
I kept getting this mental image of Godzilla versus Bambi. Stomp. Stomp. Stomp.
) The harassment was no less obnoxious, the amount of work required to fulfill the IRS request no less intense. But this time, with ACLJ on board, Kenney felt more confident. “What they primarily did was to help us not feel intimidated,” she recalls. “They started acting as a gatekeeper, and they slowed it down. They got the IRS to back off somewhat. They couldn't stop the IRS from asking the questions, but they gave us confidence that we weren't in this alone.”

Kenney went back to the garage, back to the copy machine, and got the second round of responses in the mail by the end of March. And then she waited. Again. SFVP continued to hold its meetings, and talk about politics, and put out its newsletter. Kenney increased her correspondence with other Tea Party members about the state of the investigation, and kept her people updated on what was happening in Congress. The more she heard—about the questions groups were being asked, and their treatment by the tax authority—the more alarmed she became about the IRS's real intentions. The agency looked to be compiling a dossier that included the identification of Tea Party members, how they were selected, who they associated with, what they discussed, and even the names and contact information for their relatives.

In June, she opened her mailbox; sitting there was a third interrogatory. This one wanted the names and Social Security numbers of every person who had ever donated time or money to her organization.

Kenney was shocked. And scared. “I got it in my head that they weren't going to stop until I gave them the tax information on all of our attendees.” And that, for her, was a no-go zone. She'd wanted tax-exempt status to improve her chance at grants, or perhaps have more financial ability to do public education during elections. Now the IRS was telling her that the price of that civic involvement was blowing up the anonymity of her members.

She chose her people. “I have people who show up and write tiny checks, or who give $5 or $10. They came to be involved. I had no intention of turning them over to the government.”

She was also just sick of the process; she'd been hounded to breaking point. “It was such a burden, the requests, the delays. It was like, ‘If you are going to grant it, just grant it—don't delay it forever.' It was like living on an eternal pause button.”

Kenney pulled the plug. She wrote to the IRS telling the agency to rip up her application. The federal government had won.

Kenney was right to be scared. Her decision to withdraw meant her IRS abuse ended at three questionnaires. Groups that continued to fight the process weren't so lucky.

Cleta Mitchell had without realizing it signed up to represent one that would become a national poster child for the perils of tangling with an abusive federal government and Democratic Congress. Mitchell had spent all of 2011 “haranguing” the IRS over that application she'd first filed in 2009. Nothing. Come February, her client, like more than a hundred other conservative groups, was whipsawed with a questionnaire. Mitchell dialed into that first conference call and heard Tea Party leaders recounting their experiences. “It was wild,” she remembers. “There was an accountant—he said he'd never seen anything like this in thirty years. There were people saying the IRS had asked if any candidate had ever spoken at any of their meetings, and they are freaking out, saying ‘Wait, we were not supposed to do that? Why?' The IRS wanted transcripts of meetings, and groups didn't have them. Everyone was so worried.”

And then Engelbrecht got in touch. She'd received not one but two letters—inquiries into each of her groups, King Street Patriots and True the Vote. The KSP letter contained 95 questions and requests for documents, including copies of every page of its website, every fund-raising solicitation, every page of its training materials, every sheet of its handouts at all of its public events. The True the Vote inquiry—the IRS's second request for information from that group—contained a stunning 120 questions.

“They wanted everything: where she'd spoken, where she was planning to speak—for the next two years. Two years! When I got those letters I went insane. I redacted the identifying information about the specific clients, IRS agents, and offices, and then started stalking everyone on the Hill—staffers at House Ways and Means, House Oversight, Senate Finance. I kept saying over and over, ‘Guys, something is really going on, and it's been really going on for two years,'” says Mitchell.

The lawyer started working with her clients to answer the interrogations. Only she didn't roll over. “I'd call these agents up and I'd say, ‘You do realize that donor information is not public? You do realize you are telling us to disclose something that the statute says is confidential? How does
that
work?' And then they'd scurry around and say, ‘Oh, you don't have to disclose the names, just the amounts.' And I'd say, ‘Is that so?' And more scurrying, and then I'd get, ‘Just skip that question.'”

She continues, “But that was one of the outrages of this; most people didn't have representation. And if you didn't have a Cleta Mitchell type barking at the IRS for you, you were stuck complying with a process the agency had dreamed up out of whole cloth.”

Mitchell also refused to play IRS games. She had one client applying for charitable status whose only mission was to educate about the Constitution and provide constitutional discussion guides to newly elected members of Congress. When the IRS demanded to know what materials the group was using, Mitchell mailed them a free copy of the Constitution. Nothing else. “I mean, how stupid are these people?” she asks, answering her own question.

True the Vote offered its reply to the IRS questions in March. It went back into limbo, only to get a fourth questionnaire a year later. KSP's response wouldn't go out until May 2012, and totaled more than three hundred pages. It got another demand for details in October.

The IRS process, and the delays, hit both of Engelbrecht's organizations hard. The IRS's questions were so intrusive and technical that Mitchell's help was required at nearly every step. Legal bills started to pile up. At the same time, donors were reluctant to write checks to an organization that didn't have official (c)(3) or (c)(4) status, and her lack of tax-exempt status disqualified her from applying for many foundation grants. She struggled to pull in money. In one case, TTV received grant money on the condition that it would receive its (c)(3) status by the end of the year. When it didn't materialize, Engelbrecht had to hand the money back. “When I look back on this time, I get misty-eyed,” she admits. “We were passing a cowboy hat around at meetings to keep going. We were getting calls from people across the whole country saying, ‘Will you work with us?' And yet I couldn't legitimize our status.”

And the IRS questionnaires were almost the least of Engelbrecht's problems. She appeared to have become the target of a full-blown assault by entire departments of the federal government, as well as by powerful Democratic congressional leaders and outside liberal organizations—a crackdown inspired in no small part by the president of the United States.