It was bad enough, as I wrote here last August, that the Internal Revenue Service appeared to reach an agreement to monitor the pulpits of ill-favored churches. What’s worse is that the IRS, directly counter to Freedom of Information Act (FOIA) requirements, steadfastly has refused to make public key documents pertaining to that decision.


So the IRS, acting with the whole power of government behind it, seems to be saying it can monitor and presumably punish churches for the content of their sermons, but the churches can’t know exactly if, how, and why they are being monitored.

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To fight this combined assault on religious liberty and on government transparency, conservative legal stalwarts Alliance Defending Freedom (ADF) and Judicial Watch together filed suit April 9 to force release of the IRS documents. ADF asserts that the IRS already has shared the documents with the atheist Freedom From Religion Foundation (FFRF). Once again, the IRS bends over backwards on behalf of leftists while harassing and ignoring the rights, on multiple levels, of conservative groups or faith communities.

And if the IRS continues to flout FOIA, we ought to treat its obstinacy as a major scandal. Then again, the IRS’s connivance with FFRF is itself a scandalous and deliberate trampling of our founding freedom of religious exercise and expression, guaranteed by the First Amendment.


#related#The controversy arose when FFRF sued the IRS to force it to monitor churches (the IRS apparently monitored at least 99 churches) for alleged lack of compliance with rules against express electioneering by nonprofit organizations. As executive agencies under Barack Obama so often have done, the IRS reached a friendly settlement to dismiss the suit. FFRF was so pleased with the settlement that it claimed, in a headline: “Anti-church electioneering victory is final.” FFRF described how it achieved its “major victory”:

FFRF agreed to voluntarily dismiss its closely watched federal lawsuit against the IRS after being given evidence that the IRS has authorized procedures and “signature authority” to resume initiating church tax investigations and examinations.



The ADF, on behalf of threatened churches, merely demanded through FOIA that the IRS share that same “evidence” with it, including details about the new “procedures.” Pretty basic stuff. Not only does the public in general have the right to know the basis for and substance of a federal agency’s procedures, but the parties directly affected (or targeted) by those procedures, as per a legal settlement, are especially entitled to that information. That’s the law. It’s also Common Sense 101.

In an August 28, 2014, letter to ADF attorney Christiana Holcomb, IRS “tax law specialist” Bonnie Mullins acknowledged that the ordinary deadline for compliance with ADF’s FOIA demand was a day earlier, on August 27, and that she had exercised supposed authority to extend that deadline by ten business days, to September 11, “after which you can file suit.” But even at the start of that extension, Mullins wrote that she did not expect to be able “to locate and consider release of the requested records by Sept. 11, 2014, [so] we have extended the response date to Sept. 29, 2014 when we believe we can provide a final response.”

But no response came in September. Or October. Or November. The IRS instead continued to stonewall. On January 29, a new “tax law specialist,” Corinna Smith, wrote to Holcomb to say that while she (Smith) had on November 26 “asked for more time to obtain the records you requested,” she now “need[ed] additional time to March 31, 2015.” Smith concluded: “I will contact you by March 31, 2015 if I am still unable to complete your request.”


Holcomb told me there are two problems with that. First, ADF never received any November request for “more time” (nor was it warranted by law, and neither was there an explanation why or when Smith had taken the case from Mullins). Second, March 31 came and went without the promised further contact from Smith, or Mullins, or anybody else from the IRS. Thus, even though the IRS originally acknowledged that the ordinary statute of limitations for complying with FOIA was August 27, 2014, and that the legally allowed extension ran out on September 11, 2014, the agency now has allowed more than seven months to pass beyond the legal deadline — without justification, indeed without any explanation other than a mere statement that it needed more time.

And the IRS now has violated even the latest deadline it set for itself, after its first illegal extension, without even bothering to give further notice that it is doing so.


“They have stonewalled month after month after month,” Holcomb said.

This is the same government confiscation-machine–cum–​star-chamber that will and does impose severe fines on ordinary Americans for missing a single tax-filing deadline and that will garnish the wages (effectively at the point of a gun) of anybody who won’t pay those fines. If the IRS’s own standards were applied to “tax law specialist” Mullins, Smith, or any other personnel involved in the suit with FFRF or the decision to “authorize procedures” for monitoring churches, it is conceivable that those individuals might now be subject to criminal prosecution.

Comparing the current impasse to the concurrent but unrelated scandal involving the IRS’s targeting and abusive treatment of conservative groups involved in the public-policy process, Judicial Watch president Tom Fitton said this in a press release:

For two years, the administration has been hiding information on the IRS’s targeting of Obama’s political opponents. It is certainly in the public’s interest to know what the new IRS guidelines are for investigating a basic First Amendment right.

Completely apart from the administrative law-breaking, it is that First Amendment right that remains the nub of the underlying case. The public has been bombarded in recent weeks with stories of battles about the limits of private expressions of faith in the business world. What the IRS apparently is doing, at the atheist group’s request, attacks faith at an even more fundamental level than that: inside the churches’ own doors, at their very pulpits.

As Thomas Jefferson wrote in 1808, “I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, disciplines, or exercises.”

Surely, if a government agency is monitoring religious institutions in a way that could lead to such intermeddling, the public deserves an explanation of how, why, when, and where such monitoring is taking place. But this is Obama’s IRS. It seems to think it answers to nobody. The courts must disabuse it of that virtually criminal notion, with every power at the courts’ disposal.

— Quin Hillyer is a contributing editor of National Review Online. Follow him on Twitter: @QuinHillyer.