What Obligations Do Mainstream Media Editors (e.g., The Washington Post’s) Have to Bar Their Regular Political Columnists (e.g., Michael Gerson) From Stating Bald Misrepresentations of Fact?


When people realize that their most personal, sensitive, intimate, private health-care information is in the hands of the IRS that’s been willing to use people’s tax information against political opponents of this administration, then people have pause and they pull back in horror.

— Michele Bachmann, on ABC News/Yahoo, May 20 (H/T Glenn Kessler, in a spot-on takedown today)


Let us stipulate that now might not be the best time — with IRS officials exposed for abusing power, caught in self-serving deceptions, invoking their constitutional right against self-incrimination — to dramatically expand the authority and size of their agency. But this is what Obamacare requires. Thousands of new IRS agents will implement 40-odd provisions of the Patient Protection and Affordable Care Act — the exact number is a matter of dispute since the law itself is so confusing. The largest tax law and social policy change in a generation will be imposed on a skeptical public by a government agency whose credibility is in ruins.

— Michael Gerson, The unwelcome role of the IRS in Obamacare [corrected link], The Washington Post, today

Let us stipulate that, based on the IRS inspector general’s report, it appears that the IRS employees who devised and used the screening tests at issue in the IRS controversy all were low-level agency employees, and that the agency’s officials who learned of the screening terms–including the one who on Wednesday adhered to her lawyer’s advice and invoked the Fifth Amendment at a House hearing, in light of an ongoing criminal investigation–attempted to halt the conduct.

Let us also stipulate that there is no legitimate allegation whatsoever that the IRS used people’s tax information against political opponents of this administration.  Nor could there be.  What’s at issue is, solely, the screening of organizations’ applications for a particular type of tax exemption that would allow the organization to keep the identities of its donors private.  I do not believe that these applications even fall within privacy laws; I could be wrong, but I think they are subject to disclosure under the Freedom of Information Act.  After all, the information they contain concerns the activities of these organizations: specifically, whether their activities and their purpose entitle them not just to exemption from income taxes, an exemption they could, as Linda Beale and others have explained, obtain under other provisions of the law–e.g., “527” status–but also to exemption from disclosure of the identity of its donors.

In any event, these applications do not include private tax information, even for the organization itself, much less for individuals.  Let us stipulate.  And let us stipulate that, although Gerson does not expressly claim it does, his intention appears to be to imply that it does, and that he succeeds in doing exactly that. And that because he, unlike Bachmann, is respected within the mainstream, his false representations of fact, whether outright or implied, carry weight.

And let us stipulate that although there apparently is no line beyond which the regular opinion writers of such venerable news media outlets as the Washington Post and the New York Times are not allowed to go in using that forum to state false facts, there should be.

The specific, immediate purpose of Gerson’s column today is to highlight with excitement and anticipation, and argue in support of, a lawsuit filed by Oklahoma’s attorney general challenging certain IRS regulations concerning Obamacare as an inappropriate power grab whose purpose is to–uh-oh!–enable people without the financial means to purchase healthcare insurance through the insurance exchanges, by–uh-oh!–providing them tax credits and subsidies for that purpose.

“[T]he IRS is not merely implementing Obamacare. It engaged in a regulatory power grab to ensure that it could implement Obamacare,” he says indignantly.  He elaborates:

As written, the Affordable Care Act provides tax credits and subsidies for the purchase of health insurance through exchanges that are run by “a governmental agency or nonprofit entity that is established by a state.” Since the federal government is constitutionally forbidden from ordering states to create exchanges, the law provides incentives to ensure their cooperation. This was part of the reform’s political appeal: Federal subsidies would be mediated through state institutions, undermining the criticism that U.S. health care was being nationalized.

But 33 states have so far refused to create health exchanges, with reactions ranging from “no” to “hell no.” The law allows the Department of Health and Human Services to set up federal health exchanges in the holdout states. But the statute makes no mention of the IRS providing credits and subsidies through federal exchanges. Without subsidies, employers and some individuals in those states would be exempt from mandates. Obamacare would be unworkable in over half the country.

The IRS resolved this conundrum by denying its existence. In a May 2012 regulatory ruling, it asserted its own right to provide credits outside the state exchanges as the reasonable interpretation of an ambiguous law. But the language of the law is not ambiguous. And health scholars Jonathan Adler and Michael Cannon, in an exhaustive recent analysis, find no justification for the IRS’s ruling in the legislative history of Obamacare. “The statute,” they argue, “and the lack of any support for the IRS rule in the legislative record put defenders of the IRS rule in the awkward position of arguing that it was so obviously Congress’ intent to offer tax credits in federal exchanges that despite a year of debate over the PPACA, it never occurred to anyone to express that intent out loud. A better explanation is that the PPACA’s authors miscalculated when they assumed states would establish exchanges.”

So: The IRS seized the authority to spend about $800 billion over 10 years on benefits that were not authorized by Congress. And the current IRS scandal puts this decision in a new light. What was the role of politics in shaping this regulatory decision? What pressure was applied? Surely the IRS is above such things. Or maybe not. “It doesn’t look good from the road,” says Cannon, the director of health policy studies at the Cato Institute, “when IRS employees violate the clear language of federal law in a matter that just happens to rescue the top domestic policy achievement of their boss, the president.”

Yep.  Cato Institute “health scholars” Jonathan Adler and Michael Cannon to the rescue!  They’ve searched in vain for any sign in the legislative history of Obamacare that would suggest that the 60 senators and the roughly 230 House members who voted for the legislation intended and expected that the law authorize the federal government to subsidize individual healthcare insurance premiums via tax credits and subsidies.  I mean, who knew?!

Well, Congress, maybe?  Y’know, the same body that legislates all federal agency regulatory authority?  The regulatory authority by which regulatory agencies normally grab power that ensures that the respective agency could implement, say, the Food and Drug Act or the Securities Exchange Act or the Environmental Protection Act?  Has Gerson, who is not a lawyer but who was a high-level something-or-other in the Bush administration, never heard of the “Chevron deference” doctrine?  Maybe not, but he should check it out.

The IRS engaged in a regulatory power grab to ensure that it could implement Obamacare.  Oh, dear.

As someone who has watched with dismay the current Supreme Court majority’s unabashed rewriting of one after another “jurisdictional” (i.e., breadth of court authority to hear a civil lawsuit) and other procedural statutes in order to bar civil lawsuits by individuals against businesses or governments–a juggernaut of breathtakingly aggressive and audacious proportions–I refer Mr. Gerson to a few of those Supreme Court opinions.  He can judge for himself the probability that the Court will find inappropriate the IRS’s interpretation of the Obamacare statute as authorizing those regulations.* It’s a probability that depends upon the level of hypocrisy of certain members of that court.

Gerson’s column exemplifies the vulgarity of the Obamacare-obsessed right in the glee it exhibits at the thought that there may be a way, after all, to deprive the federal government of the ability to provide financial assistance to enable people to afford healthcare insurance premiums. Gerson didn’t choose the title of his column; a headline writer did.  But the title– “The unwelcome role of the IRS in Obamacare”–is a deeply apt description of his position.  Gerson and his ilk–who have healthcare insurance and who in any event would not need financial assistance to obtain it–find the IRS role in Obamacare unwelcome, because they find Obamacare unwelcome.  If his or his family’s access to healthcare, and financial well-being if serious illness or injury strikes were at stake, would the identity of the agency effectuating the financial assistance make the difference between welcome and unwelcome involvement?  Hardly likely.  Yet he, and Bachmann, think that all that’s necessary to advance their cause is to shout “IRS” in a crowded theater.  There is no fire, but the shouting, they presume, will accomplish the purpose.

Maybe it will.  Until, that is, the Fire Department comes and reminds people that–uh-oh!–the IRS collects Social Security taxes and Medicare taxes, too.

The Fire Department won’t come in the person of Obama himself.  It’s at least a week past time when he should have explained what exactly the IRS controversy involves–applications for status as a “social welfare” organization, and therefore an exemption from compliance with election laws requiring the identification of donors–and that in fact most of these “targeted” groups in fact were political organizations masquerading as social welfare groups.  And that the very use of the word “targeting” is deeply misleading.   Other high-profile Dems should, too, instead of joining the over-the-top bandwagon, as they are doing.  But it’s Obama who’s statement would get attention.

We already know he won’t make one–not one explaining this.  He’ll just continue to do what he always does: cower when the mainstream punditry says “Boo.”

Miraculously, though, in this instance it appears that most of the public actually understands what the current genuine IRS controversy involves: Nothing actually scandalous. Which is one reason why Bachmann and Gerson and, probably coming to an op-ed page on your computer soon, David Brooks and others of that ilk, are working so hard to conflate it with Obamacare: to make both the IRS and Obamacare look sinister via chemical combustion.  And to unwittingly conflate it with Social Security and Medicare, although that part’s only inferential and awaits explicit tie-in.  By Democrats.  Oooh, scary.**

*This sentence and the next one were typo-corrected to make sense. 5/24 at 10:20 p.m.

** Paragraph edited significantly for clarity. 5/24 11:10 p.m.