Abortion Politics at the IRS
Gribbin, William J.
Abortion Politics at the IRS By William J. Gribbin The politics of abortion has affected so many different aspects of public policy that its intrusion should come as no surprise in any activity of...
...In the internal IRS contest over the fate of Life Legal, the pro-choice faction had won...
...Wittingly or not, the IRS is laying the groundwork for future administrations to similarly disqualify other legal defense groups, including those that pursue a liberal view of justice...
...Nonetheless, said the IRS letter, "The individuals you represent in connection with their conduct at 'rescues' knowingly and intentionally violate criminal trespass, disorderly conduct, and other statutes, and subject themselves to arrest...
...He had been right the first time around...
...Judge Jacobs's recent decision invites the case to drag on, if not forever, at least until a major change occurs in the administration of the IRS...
...If its approach in the case of Life Legal prevails, organizations across the ideological spectrum can expect to face new hurdles in trying to secure or maintain their tax exempt status...
...Its clients had been persons who contested local ordinances-sometimes unilateral police edicts or court orders-that restricted peaceful protesters in various ways...
...That's a peculiar observation from what is supposed to be the nation's nonpolitical tax office...
...Its meaning only became clear a full year later, on December 22, 1992, when the IRS, in a nine-page letter, finally informed Life Legal that it did not qualify for exemption under Section 501(c)(3) of the tax code...
...One official suggested that Life Legal might receive its exemption if it agreed to follow written case-selection standards drawn up by the IRS-a requirement not imposed on other legal defense organizations...
...Its activities included arranging educational seminars for attorneys, filing amicus briefs in state and federal courts in cases involving civil liberties and abortion, challenging local legislation limiting the rights of demonstrators, publishing a newsletter, and often successfully defending the First Amendment rights of pro-life protesters in civil and criminal court actions...
...But blockbuster cases don't come often...
...The second technicality is the crusher...
...The first hint of difficulty came when Life Legal's application was referred from the Los Angeles branch of the IRS (where applications from California are submitted) to Washington, D.C...
...At that point, what ordinarily would have been a cut-and-dried decision by regional IRS officials- making sure the Foundation's papers were in order, that it wasn't a scam, that it did real legal work on constitutional issues, and so on-became an inordinately long process at the IRS national office...
...It is now almost six years since Life Legal first filed its application for tax-exempt status...
...Abortion Politics at the IRS By William J. Gribbin The politics of abortion has affected so many different aspects of public policy that its intrusion should come as no surprise in any activity of the federal government...
...The IRS did not reply...
...To wit, this insight from the creative minds at the IRS: "Many, if not all, of the persons represented by attorneys affiliated with you have some personal economic interest in a favorable resolution of their case...
...But Life Legal hasn't reviewed them...
...In the meantime, IRS officialdom will remain free to set more precedents endangering the tax-exempt status of politically incorrect causes and eventually imperiling legal-defense organizations of every stripe...
...Why not the Colombian cartels...
...One more illustration should suffice...
...Whether from ignorance or zealotry, the IRS dismissed several decades of civil liberties litigation when it told Life Legal, "A substantial purpose of yours is to defend individuals accused of criminal conduct which is itself unlawful...
...If, in the eyes of the IRS, these cases have nothing to do with civil rights, it can only be because Life Legal is on the wrong side of the abortion issue...
...If the IRS was operating under a double standard-imposing upon Life Legal requirements that other organizations did not have to meet-its ruling would not be defensible in tax court...
...Would the IRS actually argue in court, in public, before persons trained in the law, that a legal defense organization could not be exempt if it defended persons facing civil or criminal liability...
...Supreme Court in Williams v. Planned Parenthood Shasta-Diablo, with pro-lifers awarded legal costs...
...Where to begin dissecting this assertion...
...Life Legal's experience provides eye-opening evidence of the extent to which the IRS can be made to serve the ideological commitments of true believers within its civil service ranks...
...The judge made two points...
...Nevertheless, technicalities are the life of tax law, and on February 20, 1996, Judge Jacobs accepted the IRS's argument that Life Legal had not exhausted all administrative remedies...
...The client clearly has an economic interest in avoiding a criminal or civil fine, a claim for damages, or incarceration...
...Tax Court for a declaratory judgment as to the Foundation's tax status...
...Of course, the same thing can be said of the defendants in any litigation involving First Amendment rights...
...More than two years later, in December 1992-significantly, after the presidential election-the IRS sent its initial ruling, denying tax exemption to Life Legal...
...In one brief period in 1994, the Foundation and its clients won (1) a remand from the U.S...
...Therefore, the Foundation hasn't exhausted all its administrative remedies and the tax court has no jurisdiction to decide this matter...
...William J. Gribbin is a longtime Capitol Hill staffer...
...More months passed, and Life Legal's representatives reminded the IRS that they were awaiting delivery of the files...
...No matter what the issue-animal experimentation, military activities, labor relations- persons who test what they perceive as improper restrictions on their rights run the risk of economic penalties, that is, fines...
...The IRS did none of the above...
...The tactics of the IRS attorneys were "indefensible," and so is the mindset with which they approach issues of civil liberties...
...Yup, it's those administrative files of the left-liberal legal defense groups...
...Many . . . are defendants in civil or criminal prosecutions or in other actions...
...Offensive as this singling out was, Life Legal's attorneys responded in good faith with their own case-selection standards on January 31, 1995...
...Apparently it does, if they belong to what Justice Scalia has called a "currently disfavored class," such as opponents of abortion...
...Most civil liberties attorneys must be content with the smaller stuff: upholding the constitutional rights of individual citizens whose cases do not get into the law books...
...Though he found the IRS "unable to explain why [the requested material] was not provided," he also noted, "We have no evidence that respondent's delay in responding to petitioner's Section 6104 request was purposeful, or that it was designed to prevent petitioner from completing its application...
...In its own words, the IRS "was waiting to receive copies of relevant documents from the Foundation concerning the administrative files of other Section 501(c)(3) organizations for inclusion in the Foundation's administrative file"-even though the Foundation could not comment on those files because the IRS itself would not provide them...
...With a straight face, it argued thus: Life Legal has all along insisted that the IRS should not rule on its case until the Foundation reviews certain requested files...
...Second, one wonders whether the IRS staffers are old enough to remember the men and women who did indeed "knowingly and intentionally violate criminal trespass . . . and other statutes" in the civil rights sit-ins that led to desegregation in the South...
...Finally, on April 26, 1994, the IRS responded that if Life Legal wanted to see those organizations' files, it had to request them under Section 6104 of the tax code...
...The purpose was obvious...
...In the process, the IRS is setting some ominous precedents for tax exempt legal operations of all sorts...
...Concerned about the delay, Foundation representatives repeatedly called IRS officials to inquire whether there were problems and whether more information was needed...
...This is not an exempt purpose...
...Would the IRS try to establish a non-existent link between Life Legal and Operation Rescue...
...3) the dismissal of charges against a sidewalk protester in San Mateo...
...Needless to say, Life Legal protested the IRS's denial of exemption, at which point the IRS's handling of the case turned from suspect to absurd...
...At which point-on May 31, 1995-Life Legal went to the U.S...
...It did so on June 16, 1994...
...Instead of broadening the dialogue, this shut it down...
...First, Life Legal's defense work had been almost entirely on behalf on individuals who were not engaged in "rescues...
...It's a good thing the new IRS litmus test was not applied, in those bad old days, to the NAACP Legal Defense Fund...
...But there's more...
...Indeed, it had: to make the strongest possible case for its tax exemption...
...Therefore, said the IRS, representing those clients does not have a "charitable purpose...
...The Foundation has handled dozens more cases like them...
...In fact, it still has not provided them, almost three years after the initial request...
...Little wonder that the presiding judge of the Tax Court, Julian I. Jacobs, told the IRS attorney, "Don't try to defend the indefensible...
...The December 22 letter, over the signature of Gerald Sack, chief of the Exempt Organizations Rulings Branch, reads like a rehash of old NARAL newsletters...
...First, Life Legal had continued to pursue administrative remedies by submitting to the IRS information about its most recent litigation nearly to the date it petitioned the Tax Court...
...Instead, the IRS took a new tack...
...and (4) the denial of injunctions against pro-lifers in Alameda County and Shasta County...
...Judge Jacobs found that Life Legal would first have to obtain that information from the IRS and then submit it back to the IRS to make it part of Life Legal's administrative record...
...It recounts at length Operation Rescue's actions at abortion clinics in places like West Hartford, Connecticut-even though Life Legal (1) never had any affiliation with Operation Rescue, (2) was in no way involved with any of those incidents, and (3) did not participate in any of the litigation resulting from them...
...The saga of the Life Legal Defense Foundation began under the last Republican administration, in April 1990, when the organization applied to the IRS for tax exemption...
...2) a ruling by the Appellate Department of the California Superior Court that forced San Jose to amend its residential picketing ordinance to meet constitutional requirements...
...Someone, presumably at Treasury, had decided that all abortion-related applications were to be centrally processed...
...That has been Life Legal's approach, and it has paid off...
...Even so, it is disappointing to find abortion partisanship at, of all places, the Internal Revenue Service...
...In a telephone conference on November 29, 1993, an IRS official, confronted with numerous cases in which Life Legal attorneys had successfully advanced their clients' rights, questioned whether those cases qualified as defense of civil rights in the same way that "landmark" civil rights litigation does...
...Perhaps that is why 11 months passed without that information's being supplied...
...These included the American Civil Liberties Union, the ACLU of Northern California, the ACLU of Southern California, the Committee for the Support of Roe v. Wade, and the Lambda Legal Defense and Education Fund...
...So they did not "knowingly and intentionally violate criminal trespass . . . and other statutes...
...The process by which that decision was reached was curious, to say the least...
...In many cases, those individuals were vindicated with Life Legal's help...
...In one particularly revealing conversation, on December 23, 1991, an IRS representative mentioned that there was a "split of opinion" at the national office, a disagreement "basically along the same lines as the abortion controversy in general...
...Such partisanship explains the case of the Life Legal Defense Foundation, a California-based organization that defends the First Amendment rights of pro-life activists...
...But does that disqualify them as clients of tax-exempt legal foundations...
...But none came...
...The Foundation filed its protest on June 3, 1993, along with an entirely proper-and astute-request that the administrative files of eight 501(c)(3) organizations be placed in Life Legal's administrative file...
...Because defending individuals who engage in such conduct is a substantial purpose of your organization, you must establish that such activity is protected under the First Amendment...
Vol. 1 • April 1996 • No. 30
