It was March of 2012. Marriage was on the ballot in 5 states that year: North Carolina in May; and Maine, Maryland, Minnesota, and Washington in November. Those seeking to redefine marriage had an uphill battle.
Thirty-two states had voted by large margins since 2004 to reaffirm the traditional definition of marriage, and no state had voted to approve same-sex ‘marriage.’ But campaigns of intimidation and harassment against donors to the traditional marriage cause and its flagship organization, the National Organization for Marriage (NOM), had begun to take its toll.
The Human Rights Campaign (HRC), NOM’s principal opponent in these political battles, even had a website, “NOM Exposed,” designed to publicly identify NOM and its supporters and donors so they and their businesses could be harassed.
But HRC wanted more. They wanted access to NOM’s confidential list of donors, lists that NOM is required to file with the IRS but are not public information.
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Then, the president of HRC was named a national co-chair for the Obama reelection campaign and, magically, NOM’s tax return and its confidential list of donors and their addresses showed-up on the HRC website.
The campaign of harassment and intimidation that had been tried and perfected in the fight over California’s Proposition 8 could now begin again in the 2012 election cycle.
That effort succeeded.
Donations to NOM and to the ballot campaigns then underway became increasingly hard to come by, to the point that the same-sex marriage forces were able to outspend NOM and its allies by more than $20 million dollars (a nearly 4 to 1 advantage) in the 4 states where marriage was on the ballot in November 2012, resulting in the first electoral losses for traditional marriage ever. (In contrast, despite being opposed by the heavyweights of the Democrat Party, including President Obama and former President Clinton, the amendment to defend traditional marriage in North Carolina passed in May 2012 by more than 20 points—a landslide in a state that President Obama had carried in 2008).
Unauthorized disclosure of a tax return is a serious felony, punishable by up to five years in prison.
Shortly after HRC posted the illegally-obtained tax returns on its website, NOM demanded an investigation by the Department of Justice and the Treasury Inspector General for Tax Administration.
We know that an investigation occurred – NOM was given a case number, and its principal officers were interviewed.
And we know that the tax return on HRC’s website originated from within the IRS because it had been redacted to hide internal codes that are placed on documents only after they are received by the IRS.
But eighteen months later, no criminal charges have been filed, and the IRS now takes the position that the release of the identity of the culprit is itself barred by the same federal statute that the culprit violated.
“Tax return information” includes investigations into violations of the IRS laws, and the investigation of the IRS itself for illegal disclosure of tax returns is therefore protected by the very same law that the IRS violated. Or so the IRS argues.
George Orwell could not be more proud.
Wherever one stands on the marriage issue, we should all be able to agree that the people responsible for these abuses by the IRS must be held to account.
The IRS is simply too powerful, with too much access to our most private information, to become a tool in the political fights of the day.
We have been down this road before. One of the Articles of Impeachment that had been drawn up against President Richard Nixon before he resigned in 1974 charged that Nixon “endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law.”
Yet the Department of Justice, the Inspector General at the Treasury Department, and the Internal Revenue Service itself have all circled the wagons to protect the felon or felons who illegally disclosed NOM’s tax return.
So today, October 3, 2013, NOM is filing suit against the IRS, as permitted by federal law, to obtain compensation for the injuries it suffered as a result of these felonies.
More importantly, the lawsuit will allow NOM to pursue discovery that will help it identify the culprit and ascertain the extent to which IRS officials (and perhaps others elsewhere in the administration) were deployed in a political strategy of intimidation and harassment against it.
The politicization of the IRS (and other law enforcement agencies of the federal government) is a dangerous development, a threat to the liberty of every citizen, and it needs to be stopped.
NOM’s lawsuit is an important step in that effort.
Dr. Eastman is the Chairman of the Board of the National Organization for Marriage. He is the Henry Salvatori Professor of Law and Community Service at the Dale E. Fowler School of Law at Chapman University, and the founder of the Claremont Institute's Center for Constitutional Jurisprudence, co-counsel with the ActRight Legal Foundation on the NOM v. IRS litigation.