Skidmore deference purports to be about recognizing expertise, but it operates to confer an advantage on agencies.
The IRS stories keep piling up, on top of the other Obama Administration curiosities. Among all the worthy reading, one recent NY Times article remains the most revealing of the many that might be read. See as well my previous post on the “Professionally Political IRS.”
As well, two other commentators need to be kept in mind—investigative reporter and Calvin Coolidge scholar Charles C. Johnson and the sober Pete Spiliakos, who blogs regularly at Postmodern Conservative (a lively team led by Peter Lawler).
Last Sunday’s New York Times had a lengthy article on the “unglamorous” Cincinnati IRS office, which some would identify as the focus of IRS evil. For the most part, the reporting supports the Administration’s current narrative that an out-of-control bureaucracy of this “independent” agency created the current mischief. So, some advise, increase the IRS training budget for the sake of this “understaffed Cincinnati outpost that was alienated from the broader I.R.S. culture and given little direction.” (It also buys into the falsehood (link no longer available) that in 2010 the IRS was “flooded” with 501(c)(3) and 501(c)( 4) applications, when in fact these were fewer than in the previous year. )
Nonetheless, the article indicates the bureaucratic behavior that suggests skullduggery and future scandals:
“There’s a buzz in the office about this Tea Party situation,” said Neal Juarez, a case advocate in the Taxpayer Advocate Service. Like several other I.R.S. workers, Mr. Juarez was skeptical that employees in Cincinnati would have acted as they had without some direction from leadership in Washington.
“You know what they say when there’s trouble,” he added. “You know what rolls downhill.”
The reporting notes at several points the discrepancy between the Administration line and the unequal treatment of applicants, for example:
Tom Clifton, the treasurer of the Mid-South Tea Party in Memphis, said he called the I.R.S. repeatedly over the year and a half it took for his group to win approval of its tax-exempt status. Every time, he said, the agency employees he talked to alluded to how they were “overrun with applications” or told him, “You don’t have any idea how much we have to do here.”
“Most of the time, I would ask, ‘Well, if that’s the case, why do you have to have so much information that doesn’t seem pertinent?’ ” Mr. Clifton said, referring to several rounds of follow-up questions he received. “None of them could ever answer that.”
Delay itself can be an important bureaucratic tactic. It is in appearance an apolitical way to achieve partisan goals. Justice delayed is often justice denied.
These lessons and more of IRS politics extend to other agencies and how Administrations can use them. I’ve seen firsthand the potential for partisan mischief in civil rights enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor. Their heads, Clarence Thomas and Charles James, sought to rein in their arbitrariness through management reforms.
In both agencies regional and local offices are the sources of charges. The central office can also develop statistically-driven systemic cases of discrimination based on the theory of disparate impact. I have described before how such agencies can make themselves nuisances in their pursuit of law enforcement.
The organizational culture of agencies reflects its mission besides emphasizing how both the lowly and the managerial can rise.
In civil rights enforcement no one gets supervisor plaudits for former Justice Department lawyer Christian Adams’ views on the Black Panthers’ voter intimidation. Similarly, the old Immigration and Naturalization Service did not exist to let immigrants in but rather to keep them out. Likewise, no one was going to escape the Cincinnati IRS office by simply being an efficient processor of applications.
The OFCCP, recently placed within the Office of the Secretary of Labor, is a ready-made tool for political abuse. (The EEOC operates through a Chair who needs the votes of three of five Commissioners to approve cases.) When badly run (and even when not), the OFCCP would conduct arbitrarily chosen site visits, demand document after document, make statistical runs of employee data, and seek anecdotal evidence of discrimination.
Bullying and intimidation would achieve civil rights compliance. Since the financial costs to the employer were relatively minor, it was easier to settle a charge on the cheap than to fight it in court. Curiously, the Bush Administration reforms of OFCCP, which made it the federal government’s systemic discrimination enforcement agency, may have left larger corporations more vulnerable to targeting. The current Administration might, for example, write in all sorts of affirmative action obligations in the federal contracts the agency supervises. But written rules are not essential to get investigators to act. This is part of their culture.
Given what has transpired with the IRS, can we doubt that the OFCCP would be used in the same, partisan way against corporations and other employers who have the wrong politics?
Which brings us to Labor Secretary nominee Tom Perez, whose nomination proceeds apace. Not curiously at all, Cleta Mitchell, an attorney representing a Tea Party affiliate in the IRS matters, made the blocking of the Perez nomination one step of five in remedying IRS’s wrongs (published in the Washington Post Friday “Forum,” May 17, A15, but available on-line only here). The IRS scandal and Perez policies are part of the same scandal of bureaucratic despotism.