Undemocratic: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom (Part 1) – Guest Essayist: Jay Sekulow
By early 2010, two developments were shaking American liberals to their core. The first was the rise of the Tea Party; the second was a Supreme Court case that protected the right of free political speech.
Deeply troubled by multi-hundred-billion-dollar bailouts in the Bush and Obama presidencies, concerned by massive entitlements and looming national bankruptcy, and shocked at the vast reach of the expanding federal government, millions of Americans were mobilizing at the grass roots, showing energy and numbers that were already starting to thwart the Democrats’ plan of a new, permanent majority—hopes that flared after President Obama’s landslide 2008 election, a landslide that was already slipping away by 2010.
At the same time, the Supreme Court of the United States decided a critical First Amendment case, Citizens United v. FEC, or simply Citizens United.
In that case, decided January 21, 2010, the high court applied decades of First Amendment precedent to reach a rather common- sense holding: Corporations have the right to speak on political matters. Writing for the majority, Justice Anthony Kennedy affirmed that “if the First Amendment has any force, it prohibits Congress fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” 1
It also cleared the way for anonymous donors to fund corporate political speech. While the Left cast this in sinister terms, in reality the decision did little more than reaffirm a core constitutional truth: Americans have the right to band together in associations and speak about political issues. We also have the right to anonymous speech. These two rather noncontroversial principles have been established since our nation’s founding.
After all, anonymous speech helped propel the American Revolution. Anonymous speech, in the Federalist Papers, helped ratify the Constitution. Anonymous speech helped protect and advance the civil rights movement. When you speak, the government does not have a right to know who you are.
But to listen to the Left, the combination of Citizens United and the rise of the Tea Party represented the coming of the apocalypse, where shadowy “secret donors” would “Astroturf” (a term for a fake grassroots movement) a political movement to depose the Democratic majority and end its progressive experiments in health care, radical Keynesian economics, and abortion on demand.
On the day of the ruling, President Obama called it “a major victory for big oil, Wall Street, banks, health insurance companies, and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” 2
Obama later launched a direct attack on the decision in front of the Justices of the Supreme Court, Congress, and the nation, during his 2010 State of the Union address. He chastised the Justices:
Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests— including foreign corporations—to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.3
This comment was not only rated “mostly false” by even the lib- eral fact-checkers at PolitiFact; it was so at odds with the law and the text of the decision that it caused a visible reaction from Justice Samuel Alito, who simply said “not true.” 4
Justice Alito was correct. The president wasn’t telling the truth. In reality, the decision empowered everyday Americans, allowing them to form grassroots associations, Tea Parties, pro-life groups, and others that magnified their voices and allowed them to impact debates not just about ObamaCare but also about the most local of issues, including the curriculum at the high school down the street.
And it was just this kind of power that the president and his allies at the IRS truly feared.
How do we know? Look at their actions.
In February 2010, the IRS responded to Citizens United, though not by targeting “big oil, Wall Street banks, health insurance, and other powerful interests.” They did not take on Exxon or Goldman Sachs or Cigna health insurance. Instead they pulled every single application for tax exemption by groups whose names included the terms “Tea Party,” “Patriots,” or “9/12,” or other conservative- sounding phrases like “We the People” or “Take Back the Country.” By March 2010, less than two months after the Citizens United decision, the IRS was coordinating this effort out of Washington, D.C., and referred to the cases internally as the “Tea Party cases.” Not the “big oil cases.”
Not the “Wall Street cases.” The “Tea Party cases.”
As 2010 dragged on, the targeting intensified, involving senior IRS lawyers and—critically—the director of the Exempt Organizations Division of the IRS.
Lois Lerner was a known partisan. Previously at the Federal Election Commission (FEC), she had distinguished herself by her hyperaggressive pursuit of Christian or conservative organizations. Her attacks on the Christian Coalition, for example, were extreme.
I know. I was directly involved in that case, advising the founder of the Christian Coalition while the coalition endured Lois Lerner’s unprecedented assault.
My friend and colleague James Bopp, one of the best constitutional litigators in America, also represented the Christian Coalition and described the scope of the investigation in testimony before Congress:
The FEC conducted a large amount of paper discovery during the administrative investigation and then served four massive discovery requests during the litigation stage that included 127 document requests, 32 interrogatories, and 1,813 requests for admission. Three of the interrogatories required the Coalition to explain each request for admission that it did not admit in full, for a total of 481 additional written answers that had to be provided.
The Coalition was required to produce tens of thousands of pages of documents, many of them containing sensitive and proprietary information about ﬁnances and donor information. Each of the 49 state afﬁliates were asked to provide documents and many states were individually subpoenaed. In all, the Coalition searched both its offices and warehouse, where millions of pages of documents are stored, in order to produce over 100,000 pages of documents.5
It’s important to understand why Bopp emphasized the scope of this discovery. In litigation, it’s a common (bad-faith) tactic to attempt to metaphorically bury your opponent in a flood of document requests, taxing their resources to the limits to answer information demands. To do this to a nonprofit as part of a massive fishing expedition was both chilling and unacceptable.
The FEC left no stone unturned:
Furthermore, nearly every aspect of the Coalition’s activities has been examined by FEC attorneys from seeking information regarding its donors to information about its legislative lobbying. The Commission, in its never-ending quest to find the non-existent “smoking gun,” even served subpoenas upon the Coalition’s accountants, its fundraising and direct mail vendors, and The Christian Broadcasting Network.6
But then it got much worse. The FEC turned its attention to the actual religious content of Christian Coalition activities:
FEC attorneys continued their intrusion into religious activities by prying into what occurs at Coalition staff prayer meetings, and even who attends the prayer meetings held at the Coalition. This line of questioning was pursued several times. Deponents were also asked to explain what the positions of “intercessory prayer” and “prayer warrior” entailed, what churches speciﬁc people belonged to, and the church and its location at which a deponent met Dr. [Ralph] Reed.
The FEC put pastors under extreme scrutiny:
One of the most shocking and startling examples of this irrelevant and intrusive questioning by FEC attorneys into private political associations of citizens occurred during the administrative depositions of three pastors from South Carolina. Each pastor, only one of whom had only the slightest connection with the Coalition, was asked not only about their federal, state and local political activities, including party afﬁliations, but about political activities that, as one FEC attorney described as “personal,” and outside of the jurisdiction of the FECA [Federal Election Campaign Act]. They were also continually asked about the associations and activities of the members of their congregations, and even other pastors.7
At one point, the FEC even asked Oliver North what it meant when friends prayed for him, a line of questioning Lieutenant Colonel North rightly found offensive. Yet Lerner pressed on—far more focused on suppressing the Christian Coalition than respecting the First Amendment rights, including religious liberty rights, of American citizens.
And make no mistake, Lois Lerner was a biased, partisan liberal. Years after this investigation, she was caught using her official IRS email account to call conservatives “crazies” and “teRrorists” (yes, she used that spelling), and even used expletives to describe conservative groups.8
Speaking of conservatives she heard on radio, she said, “Maybe we are through if there are that many [expletive omitted].” 9
Then she said, speaking again of conservatives, “So we don’t need to worry about alien teRrorists. It’s our own crazies that will take us down.” 10
In a bureaucracy governed by the Constitution, one that respects the rule of law, defends individual liberty, and is staffed by professionals, using official government email to slander an entire class of citizens would mean the end of a bureaucrat’s career.
Likewise, in a bureaucracy governed by the Constitution, one that respects the rule of law, defends individual liberty, and is staffed by professionals, questioning American citizens about the content of their prayers would mean the end of a bureaucrat’s career.
But when bureaucrats have immense power, enjoy near-absolute job security, and are brazen partisans, this kind of inquiry helps one rocket to the top. And so Lois Lerner found herself in a key position at the IRS, ready to choke off the Tea Party before it had even had the opportunity to fully form.
Lerner—and her numerous IRS colleagues—acted with an enthusiastic cheerleader in the White House, with President Obama even implying that conservative groups were receiving foreign funds. In August 2010, just three months before the November 2010 midterms, President Obama warned about “attack ads run by shadowy groups with harmless-sounding names.” He went on to say, “We don’t know who’s behind these ads and we don’t know who’s paying for them . . . you don’t know if it’s a foreign-controlled corporation . . . the only people who don’t want to disclose the truth are people with something to hide.” 11
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ represents dozens of organizations that were unlawfully targeted by the IRS. Jay is a New York Times bestselling author. The above essay is an excerpt from his latest book, UNDEMOCRATIC: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom. He hosts “Jay Sekulow Live”– a daily radio show which is broadcast on more than 850 stations nationwide as well as Sirius/XM satellite radio. Follow him on Twitter @JaySekulow.
Excerpt provided by Howard Books, an imprint of Simon & Schuster.
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