The New Crazy and the Old Crazy -- Attacks on Democracy and Attacks on Taxes

by Neil H. Buchanan 
As it happens, this week was the tenth anniversary of the publication of my first column on Verdict.  As frequent readers of Dorf on Law know, Verdict publishes bi-weekly columns by a roster of columnists that includes Professors Sherry Colb and Michael Dorf, and we often use our Dorf on Law space to riff on some aspect of our Verdict columns.  Thus it shall be today.
In today's column, "The Intensifying Madness on America’s Political Right: A Decade-Long Perspective," I note that my first Verdict column discussed the debt ceiling crisis that the new Tea Party-fueled House Republican majority was then in the process of creating.  I had already written multiple pieces on Dorf on Law discussing the debt ceiling, and I was genuinely amazed that the Republicans had rushed into that precinct of Crazytown, given the dangerous and self-defeating nature of their strategy -- to say nothing of how much it annoyed their moneyed patrons.

But my purpose in today's column was not to discuss the content of the debt ceiling nonsense.  Instead, I described how that particular bit of political extortion was the leading edge of the insanity that has subsequently engulfed the Republican Party.  I described the debt ceiling crisis as the beta version of the New Crazy, and the general release version of the New Crazy is inciting and then justifying political violence, along with a full-on rejection of representative democracy.

I also, however, described the Old Crazy, my example being Republicans' longstanding effort to prevent the government (via the tax cops, the IRS) from collecting taxes from rich people, the law be damned.  Because the Old Crazy is again rearing its ugly head, with conservative activists trying to kill added funding for the IRS in the proposed bipartisan infrastructure bill, it is worth taking some time here to say a few things about where the Old Crazy fits into the Republicans' current insanity.

Yesterday, a news article in The Washington Post reported: "Conservative groups mount opposition to increase in IRS budget, threatening White House infrastructure plan."  Post columnist Catherine Rampell then chimed in with appropriate outrage: "If you care about 'law and order,' if you think unpatriotic hucksters are getting away with scamming Uncle Sam or, heck, if you don’t want your own taxes to increase, you should demand to beef up the Internal Revenue Service."

Rampell's column ran under the headline, "Fund the (tax) police," and various commentators on the non-Fox cable channels soon picked up on that framing, mocking conservatives for their hypocrisy in claiming to favor the rule of law except when it comes to giving big money a free pass.

That is all true, and the irony certainly induces a knowing smirk; but by this point, we should all understand that charges of hypocrisy have zero impact on conservatives.  If they did, Joe Biden's first Supreme Court nominee would now be taking the oath of office, and Amy Coney Barrett would still be toiling in the salt mines of South Bend, Indiana.  And because Republicans now believe that Blue Lives Matter unless the women and men in blue are stopping seditionists, even a police-specific shaming exercise is not going to go anywhere.

The reason that the Republicans' attacks on the IRS are part of the Old Crazy is that they are, not to confuse the issue, so old.  Indeed, one of the oldest plays in the Republicans' playbook is to vilify the IRS.  Ted Cruz's lame attempts to refer to the tax law as "the IRS code" are nothing compared to the show trials that the Gingrich Contract on America troops ran in 1996, with Republicans tolerating — no, positively encouraging — lurid, often perjured testimony about the supposed abuses by the tax agency.

To be clear, the supposed Party of Ideas truly has one core policy idea: tax cuts, followed by more tax cuts, almost always for the rich.  That is not part of the Crazy (New or Old), however, because it genuinely is a policy idea.  It is a mindless and damaging policy idea.  It is a policy idea that conflicts with their other supposedly big ideas (like balanced budgets).  It is a policy idea that has failed to live up to its promises, time and time again.  But it is an idea that one can pursue through legitimate governmental processes.

But the attacks on the IRS are Old Crazy because they are in the same category of utter lawlessness that Republicans have come to embrace in the various forms of the New Crazy.  Even when they succeed in cutting taxes on their benefactors, Republicans have decided that this is never enough.  They pass whatever laws they can, but then they de-fund the IRS and complain about its bad customer service, looking the other way while the party's wealthiest funders get away with tax fraud.
There is another similarity between Republicans' craziness on other issues and their craziness about the IRS.  As I recently noted regarding the issue of voting rights, Mitch McConnell and other Republicans "treat the status quo -- fully corrupted as it already is -- as the natural baseline against which all changes must be measured.  That framing necessarily implies that Democrats' proposals to allow more people to vote is per se 'partisan.'"
Now, as President Biden and the Democrats do nothing more than try to undo the Republicans' successful defunding of the IRS -- more than a 20 percent cut in real terms since 2014 and a 30 percent reduction in enforcement agents, all while adding significant new responsibilities to the beleaguered agency -- this is all being framed by Republicans and the press as increasing funding for the IRS, as if the slashed budgets of the past few years are the natural baseline.
This is only one aspect of the mainstream press's gullibility on tax issues.  In The Post's article yesterday, the reporter notes that the current low funding of the IRS is the result of Republicans' anger over what I have long called the IRS non-scandal.  Here is how the reporter described that argument in yesterday's article:
Animating Republican opposition is more than a decade of ill will between the GOP and the IRS. Nearly a decade ago, a top IRS official acknowledged its auditors had scrutinized the finances of conservative leaning groups based on their names — raising the specter of political targeting even though the agency did eye some liberal nonprofit groups as well.
Note first that the non-scandal is not "animating" the Republicans.  They have been animated about this for decades.  The non-scandal has always been a con.  More importantly, the IRS's acknowledgement did not "raise the specter of political targeting" -- given that, as the reporter notes in the same sentence, both liberal and conservative groups had been scrutinized -- until Republicans made the evidence-free claim that it was all an Obama hit job.  The Republicans went Full Benghazi on the IRS in the mid-2010's, yet they never found any evidence of political motivation.  There was a limited screw-up that had already been corrected, as even Republican-led congressional inquiries made clearly repeatedly.  Full stop.

Unlike Benghazi, where Republicans abused government resources as part of a purely partisan strategy but did not change any laws of consequence, going after the IRS has led to bad outcomes.  The agency has lost tons of talent, and there is now an even larger "tax gap," with estimates that we lose something like $500 billion to $1 trillion per year in unpaid taxes.

Another reporter, Jim Tankersley of The New York Times, was interviewed about this issue back in April, and the most charitable way to describe his performance is that he was so busy trying to be fair and balanced that he was simply repeating Republican talking points uncritically.  The interviewer's look of incredulity was priceless.  (Watch the 4-minute video here.)  He acted as if there were a bunch of small businesses who would be sunk by compliance costs, even though there is no evidence to support that claim.
Even more bizarrely, Tankersley said that the IRS had "decided" to devote its limited enforcement budget to going after the working poor's use of the Earned-Income Tax Credit, whereas the truth is that Republican-led Congresses have legally required the IRS to do so.  This is not a poor decision by a bureaucracy.  It is a specific and deliberate effort by Republicans to make the poor miserable and let the rich off the hook.

In The Post's article, the reporter did elicit some revealing quotes.  A Koch-affiliated lobbyist says: "Enforcement of tax laws is one thing, but what people are concerned about is aggressive audits."  Aggressive audits are bad?  We now find ourselves back in the mid-1990's, with spooky stories about abusive IRS agents, whereas the real complaint is that the people who are trying to cheat simply hate being confronted with cops who are not stupid and easily cowed.

Another right-wing source added: "Reports of increased audits, enforcement and reporting requirements raise red flags with our members.  We would urge and encourage instead increased compliance assistance, better customer service and remedying the processing delays."  All good stuff, of course, but not as a substitute for enforcement.  The tax law is not being evaded by billionaires because they lack access to a customer-friendly phone rep.  They are cheating because they know that their Republican friends in Congress have made it nearly certain that they will not be caught.

So the Old Crazy is alive and well.  Having only one idea -- taxes on the rich should be repealed -- Republicans were so frustrated by Americans' commitment to progressive taxation that they decided to aid and abet outright lawlessness.  And once they realized that they could get away with that, Republicans realized that they could expand their assault on the rule of law.  First they came to subvert progressive taxes, now they are here to destroy the Constitution itself.