-- Posted by Neil H. Buchanan
Scheduling changes resulted in my writing two Verdict columns this week. I discussed Tuesday's column in a post on Dorf on Law the same day. Turning from "impeachment traps" to torture, today's column compares the substance and the politics of the Senate's CIA torture report -- a scandal if ever there was one -- with what I have long called the "IRS non-scandal scandal."
The comparison is powerful and revealing, but precisely for that reason, it is also uncomfortable. After all, even to compare the vicious atrocities revealed in the torture report to anything else, and certainly to anything as minor as the things that some low-level IRS employees did to some groups applying for 501(c)(4) status, risks diminishing the horrors of what the CIA did at the behest of the Bush/Cheney people. This meant that, in order to make any meaningful comparisons, it was necessary to discuss things at a higher level of abstraction, to compare worst-case scenarios.
And the worst-case scenario in the IRS non-scandal scandal was, as I have always acknowledged, truly bad, if it had been true. If there really were any credible evidence suggesting that the Obama Administration had orchestrated an effort to harm its political opponents by abusing the power of the IRS, that would be scandalous. Happily, no such evidence has emerged. Instead, the dead-enders have been reduced to saying, "There must be something going on. We just need to keep digging."
Why are they so certain that something evil was afoot? Apparently, they find it hard to believe that their opponents are not as cynical as they are. (Dick Cheney himself said that the Obama people must have been using the IRS for political ends -- presumably because he could easily see himself doing the same thing.) Because these people simply believe as a matter of deep commitment that something must be out there, the game is then to infer evil intent from every comment and action by the President. Remember when Obama, in a State of the Union Speech, criticized the Citizens United decision? Most people remember that moment because of Justice Alito's angry facial expression, caught on camera. IRS scandal-mongers, by contrast, have insinuated that there is somehow a connection between Obama's comments and the IRS employees' actions.
Again, however, I concede in the column that this could have been a bad thing. The people who worry about the IRS possibly being misused for political ends are not worrying about something that is inherently harmless. They are simply refusing to give up the ghost on an investigation that has gone nowhere, and that shows no signs of ever leading anywhere.
By contrast, as I note, the CIA scandal is not a first step down a slippery slope, about which we must be vigilant in order to prevent real atrocities. It is a case of real atrocities.
One idea that I mention briefly toward the end of the column, but which I do not develop in any detail, is the comparison between possible excuses for refusing to prosecute or investigate the CIA, but to go after the IRS with guns blazing. Remember, in order even to compare the IRS non-scandal scandal with the CIA torture scandal, we had to "go meta," in order to find some way in which the two situations could be comparably bad. Once we have done that, however, then we must also be willing to apply the same level of generality to the arguments for and against aggressive prosecution of wrongdoing. If the argument is, "We would harm America by failing to understand the important public service that the CIA provides," then the argument could also be, "We are harming America by vilifying the IRS."
How is that damage done? The one thing we know about tax collection is that it requires the consent of the governed. It is essential not just to have taxation with representation (quick shout out to the residents of Washington, DC!), but people must generally comply with the laws in order for people to be willing to continue to comply with the laws. Think of driving on a highway: If everyone can see that everyone else is generally complying with traffic laws, and that speeders are ticketed with some regularity, then pretty much everyone obeys the law. If a time comes when people no longer think that is true, chaos ensues.
In the tax realm, this is not hypothetical. One of the empirical puzzles that tax scholars have tried to explain is the relatively high rate of compliance with tax laws in the US. From a certainty/severity criminal law standpoint, there should be much more cheating on taxes in this country. Countries with low "tax morale," e.g. Greece and Italy, spend much more money trying to collect much less tax revenue, because everyone is cheating.
So, at a sufficiently high level of generality, one could make the argument that the future of America depends on a functioning government, and the government depends on revenue, and the ability to collect future revenues is threatened by politicians "looking backward" and attacking the IRS and its employees (and, hardly coincidentally, cutting its budget even as the IRS's legal responsibilities expand). Attacking the CIA makes Americans less safe (an assertion that is obviously false)? Well, attacking the IRS puts American democracy itself at risk!!
As I make clear in today's Verdict column, I do not believe the conclusion of that argument. I explain the argument not because I believe that we should refrain from investigating and (where appropriate) punishing IRS employees, but because I believe that we should investigate and prosecute crimes at the CIA, wherever the evidence leads. If the "look forward, not backward" argument from Obama is justified by apocalyptic fantasies about the consequences of holding people responsible, then we can invent apocalyptic fantasies to justify nearly any course of action.
Nevertheless, the Republicans continue to treat the IRS non-scandal scandal as if it is the worst thing that ever happened, while a bipartisan consensus has emerged that will prevent the CIA from receiving even one-tenth of the angry attention that the IRS has received. Why? The most obvious explanation, I think, is the ease with which Cold War-style fear mongering rolls off the tongues of American politicians. Take a real bogeyman (the Soviet Union, or al Qaeda, or ISIL, or whatever) and use it to justify a no-holds-barred response. Taxes are not really life-or-death, after all, whereas Cheney can spend an entire interview justifying torture by invoking 9/11.
There is, however, an additional factor in play. As I have noted in some previous Dorf on Law posts (especially here and here), an ongoing theme of movement conservatism is to de-legitimize the institutions of government. If everything can be portrayed as corrupt or ineffective, then the people will give up on the idea that the government can at least reduce the harms that the powerful inflict on everyone else. That the IRS enforces the one part of the tax system that is still progressive makes it all the more enticing as a target of the Right, which thrives on the mythology of the lazy 47% and all that.
All of which made it especially poignant to read an op-ed in The New York Times last week. Written by a British expert on Russian politics under Putin, the Times's tagline for the piece was: "The Kremlin’s strategy is to turn all politics into a cynical farce." The author's comments include the following: "At the core of this strategy is the idea that there is no such thing as objective truth," and "Sadly, this mind-set resonates well in a post-Iraq and
post-financial-crisis West increasingly skeptical about its own
institutions, where reality-based discourse has already fractured into
political partisanship." Notwithstanding the false equivalence implicit the last sentence, the author describes well the net result of the "We create our own reality" version of politics practiced by the 21st century Republican Party.
The common thread, then, is that the CIA's actions must be defended, because doing so reinforces the notion that the government is lawless (and always will be), while the IRS must be attacked because it is essential for the cynics to make everyone believe that the government is out to get them. The less trust we have in our institutions, the better for those who want to further pervert those institutions.