In September 2011, just before I stepped down as Pennsylvania NOW President, PA NOW along with the Feminist Majority, Legal Momentum, and several other feminist organizations signed onto an amicus brief written by the Women’s Law Project in support of two middle school girls from the Easton Area (PA) School District who participated in a youth breast cancer awareness program by wearing “I ♥ boobies” breast cancer awareness bracelets to school.
Sample “I ♥ Boobies” bracelets that were banned by the Easton Area School District; photo courtesy of Keep a Breast Foundation
Kayla Martinez and Brianna Hawk, then seventh and eighth graders, were suspended for wearing Keep A Breast bracelets on Breast Cancer Awareness Day. Subsequently the school district instituted a district wide ban on the bracelets because they were supposedly “lewd” statements about women’s bodies. These young women, citing 1st Amendment rights, refused to take them off and then filed suit through their parents after the district-wide ban was instituted.
On August 5, 2013, the 14-member 3rd Circuit Court of Appeals, in a 9-5 en banc decision, upheld the District Court injunction against this ban on educational free speech. They looked at the question of whether or not speech about women’s bodies and their health “could [be] interpret[ed] as lewd, vulgar, profane, or offensive [when that] speech could also plausibly be interpreted as commenting on a political or social issue.” The court decided that breast cancer is a social issue exception and thus protected speech. This means that talk about breasts and breast cancer is protected speech in schools throughout Pennsylvania, Delaware, and New Jersey, the three states that fall under the jurisdiction of the 3rd Circuit Court of Appeals.
According to the Keep A Breast Foundation, the makers of this bracelet, the 3rd Circuit Courts decision
“[M]arks the first time a federal court of appeals has ruled that the First Amendment protects student speech that is plausibly understood as commenting on political or social issues.”
The Court’s bottom-line statement in its en banc decision, I believe, says it all:
“The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health.”
I just read this blog by Michael J. Rosen about the extra scrutiny of conservative groups seeking tax-exempt status. I decided to repost his blog with three sets of comments. My comments give thought to three different sets of questions:
What else besides what we’ve heard about might have helped lead to this “scandal?”
Is it really a “scandal?” Do we know?
Is this issue likely to go away soon?
What else might be behind this scandal?
Besides a lack of training and oversight that we’ve heard about, I think another part of this whole problem is the backlog of applications in the non-profit division of the IRS. I talked to them the other day about a non-profit I work with that is attempting to get its 501(c)4 status reinstated due to the 990-N issue. The agent I talked to said that they are getting over 5,000 applications every month and are working on them on a first come, first serve basis.
The IRS website says that with the small staff they have, there is an even greater backlog on applications than what the agent told me. Here’s that IRS statement.
“All [non-profit] applications are sent to the IRS Determinations Office in Cincinnati. This office receives approximately 70,000 applications for tax-exempt status of all kinds each year [that averages out to 5,833 new applicants each month]. This includes applications from section 501(c)(3) and section 501(c)(4) organizations. This office, which includes fewer than 200 people working directly on applications, is primarily responsible for working determination applications.”
The agent helped me to figure out the current status of this VERY SMALL non-profit that I’m working with (if it brings in $400/year for this group, it’s doing well). He told me that the records show that all of the paperwork at our end is basically complete, but the application won’t be reviewed until the office gets to the applications marked as “complete” as of September 2012 (when he says my group officially completed the paperwork). And, directing me to another section of the website, he pointed out that the office is currently working on applications from early May 2012 – i.e., over a 1 year delay in processing!
The aforementioned web page also goes into more detail, from the official IRS viewpoint, of what happened with the Tea Party organizations. It says that approximately 70 Tea Party groups were put into the in-depth “centralized” review; that out of a total of, currently, about 470 organizations being given similar treatment.
Is it a Scandal? Do We Really Know?
A scandal is defined as “a circumstance or action that offends propriety or established moral conceptions or disgraces those associated with it.” A political scandal is “an instance of government wrongdoing” that offends or disgraces those directly associated with that wrongdoing.
In this case, so far, it doesn’t appear to be a scandal that rises to the level of the White House. According to the Washington Post, based on increasing evidence, the IRS issue is very bad press for the Obama administration. According to their report,
If we believe the agency inspector general’s report, a group of employees in a division called the “Determinations Unit…” started giving tea party groups extra scrutiny, were told by agency leadership to knock it off, started doing it again, and then were reined in a second time and told that any further changes to the screening criteria needed to be approved at the highest levels of the agency.
The White House fired the acting director of the agency [this week] on the theory that somebody had to be fired and he was about the only guy they had the power to fire. They’re also instructing the IRS to implement each and every one of the IG’s recommendations to make sure this never happens again.
And from all the evidence obtained so far, there is no evidence of any connection between the “Determinations Unit” and the Obama administration. So unless there is a smoking gun hidden somewhere, there is no political scandal within the White House. Time will tell.
Is this issue likely to go away anytime soon?
No, I personally doubt that the issue will “go away” anytime soon.
Three reasons:
partisan politics to continue attacking Obama’s executive branch;
long history of spying and intrusiveness; and
free-speech issues.
The first issue is purely partisan. Issues that Republicans think will make President Obama look bad are brought up again and again even when the public, to some extent (but not the base) has moved on. Has the Benghazi issue died? How many times will the Republican-dominated House vote to revoke Obamacare before they give up?
The second issue is spying and intrusiveness that, for the first time in a long time, concerns both sides of the aisle. There has been a long history of the feds, usually the FBI, targeting non-profits. Think of the Friends (Quakers) peace-related work for example or the Communist-baiting of the 1950s. Usually it’s the more progressive, left-leaning groups that are targeted. These groups have a long memory and I think may, in this case, support the concerns raised in this non-profit scrutiny case. And since there were progressive groups in this list of targeted non-profits, both sides have some ammunition to push back against the actions of the IRS.
The third is a First Amendment issue. Combine these IRS actions with the free press concerns over the Justice Department’s review of press reporters’ phone logs; both sides have screamed NO. What you have here are two different departments of the executive branch allegedly intruding on the First Amendment: one department—the IRS—may be attacking an individual’s free speech rights and another department—the Justice Department—may be attacking freedom of the press. Both protections are contained within the First Amendment of the US Constitution.
So no, based on all three routes of concern, I don’t think this issue will go away anytime soon.
This week, the US Internal Revenue Service acknowledged and apologized for behavior that had long been rumored. The IRS improperly targeted for extra scrutiny conservative groups seeking tax-exempt status.
The IRS did not ultimately deny tax-exempt status to a single group receiving extra scrutiny. Some say this proves that the actions of the IRS were baseless.
President Barack Obama directed Jack Lew, Secretary of the Treasury, to request the resignation of Steven Miller, Acting IRS Commissioner.
Miller resigned and Lew accepted the resignation.
The Justice Department has initiated a criminal investigation.
Exercising its oversight responsibility, Congress has begun its own probe of the IRS scandal.
Obama addressed the nation on television saying, “It’s inexcusable and Americans are right to be angry about it and I am angry about it. I will not tolerate this kind of behavior in any agency, but particularly…
This morning, I was scanning Tweets that came into my Twitter account. One of the Tweets said,
“Why the phrase ‘Supreme Court to hear campaign-finance case’ should scare you.”
It contained a link to an article in the Daily Beast. This article said that the US Supreme Court has decided to take another look at campaign financing in a case from the United States District Court in DC called McCutcheon v. Federal Election Commission. I read the article.
And yes this case scares me. McCutcheon argues that there should be no limits at all on campaign financing. It scares me because I believe that if the Supreme Court rules in favor of McCutchen, there will be more influence and therefore more institutional corruption on our public policy. This will then allow the creation of more holes in the safety net for people’s lives due to the corrupting influence of big money. For clarification, institutional corruption is defined as:
[T]he consequence of an influence within an economy of influence that illegitimately weakens the effectiveness of an institution especially by weakening the public trust of the institution.
Why? Because I do not trust the members of the current Supreme Court to openly and fairly take into account that elected officials need to answer to their constituents and not to the people and companies and lobbyists that influence them by throwing lots of money and offering consulting jobs to these elected officials (a form of “money”) once they leave office.
My mistrust results from their decision in the 2009 Citizens’ United case. They held that the First Amendment to the US Constitution prohibits the government from restricting independent political campaign expenditures from corporations and unions. The aftermath of this decision has been devastating. Immediately after this decision, the DC Circuit Court (which handles cases involving federal regulations) ruled that
“individuals could make unlimited contributions to so-called Super PACs, which supported individual candidates.”
And what did we see? In the 2010 elections, Super PACs—mostly funded by the mega-rich—assisted conservative Tea Party candidates at all levels of government to win seats that they would not have otherwise been able to win. This resulted in a lot of gerrymandering around the country for the incumbents’ self-interest. And in 2012, $6.2 billion was spent on elections; over $10 million of these funds were given to a small number of Super Pacs by a very small number of mega-wealthy individuals—including the Koch brothers—to influence the outcome of the elections.
If this case overturns what few limits on campaign financing are left, the doors for institutional corruption will be thrown wide open. Candidates will spend even more time chasing money, mostly soliciting funds from large, non-constituent individuals and corporations. Most of these individuals are heads of corporations whose special interest is their bottom-line profits and not the interests of the “47%.”
Fred Wertheimer is President of Democracy 21. It is a non-partisan group that works to eliminate the undue influence of big money in the public arena. He agrees with me that big money corrupts our public institutions. In a press statement on February 19, he said that the
“[A]ggregate limit on contributions by individuals is necessary to prevent circumvention of the limits on contributions to candidates and political parties and the prohibition on federal officeholders soliciting huge corrupting contributions.”
And further, if the Supreme Court either completely guts or weakens campaign financing, this decision
“…would open the door to $1 million and $2 million dollar contributions from an individual buying corrupting influence with a powerful officeholder soliciting these contributions, and with the political party and federal candidates benefiting from these seven figure contributions.”
I believe that it is the local constituent who should be influencing their representatives. Not corporations. Not big money. And not the 1% at the top of the income ladder who do not live or experience the lives of the people who live in each of our communities.
I am one of the 85% of Americans who view Congress unfavorably because of what they have NOT been doing for people’s lives. Like allowing funds for critical domestic programs to be cut due to the budgetary stalling and delays of the Fiscal Cliff and Hurricane Sandy debates and resulting Sequestration that now looks like it will become reality this coming Friday. Like delaying passage of the Violence Against Women Act (VAWA) from being reauthorized for over two years (which, may change tomorrow when and if the House FINALLY votes on the Senate-passed VAWA Act of 2013). Like talking about but not taking any comprehensive action, so far, to deal with violence and gun safety (for more information on this gun safety issue, read my blogs here and here).
No, I don’t trust the US Supreme Court. And no, I do not trust Congress. All because of the influence of money on the decisions the do and do not make.
Institutional Corruption is a problem. We need to reduce that corruption. We need to empower the small donors. New York City, as well as Los Angeles and San Francisco have done this. And in a plan put together by Brennan Center for Justice at New York University School of Law and Democracy 21, we could do the same thing as well across the country. Look at the plan and then lobby your legislator, even if you don’t trust him or her. Vote for candidates in the future who pledge to listen to their constituents and not to big money.
This will take a long time. But it is necessary. Then and only then do I believe that we can and will be able to trust our elected officials to truly represent us and our concerns.
For More Information on Institutional Corruption
For more information, watch the video below. In this 2009 presentation, Lawrence Lessig defines institutional corruption. He then discusses the probable effects of this undue influence of money (broadly defined) not only on elected officials but its effect on other institutions, such as the EPA and medical research.
DIY Resource for those wishing to have their Italian citizenship recognized through Italy's "jure sanguinis" birthright citizenship & “Jure matrimonii” by marriage
Progressive commentary from Gainesville, Florida, once called the Berkeley of the South. Potano was the chief of and the only known name of the Native American tribe inhabiting the area around what is now Gainesville at the time the Europeans arrived.
“It takes no compromise to give people their rights…it takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.” – Harvey Milk
a feminist habit. thinking broadly about life and art. at peak. sometimes broadspoken. not a translation program. crushing the doublespeak. seeking free speech.
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Learn more about the state laws being introduced and passed around the U.S. that is limiting Women's rights. Did you know that the Women's Equal Right Amendment from 1983 still needs to be ratified by 3 more states before it goes into effect?
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