- - Friday, September 5, 2014

ANALYSIS/OPINION:

For years, there has been a multipronged attempt to drive conservative speech from the public square.

These prongs include misuse of government powers to target conservatives, attempts to keep conservative voices from being heard on mass-media outlets, and redefinition of language in order to taint conservative speech as unacceptable.

That first prong, though, the misuse of government power, has become more prevalent during the Obama era with the targeting of conservatives and particularly Tea Party groups by the Internal Revenue Service serving as the most prominent example.

We now know, and the Treasury Department’s internal reviews have acknowledged, that the IRS delayed and deferred action on tax-exempt applications by using, among other things, screening mechanisms keyed to words such as “Tea Party.”

The IRS commissioner has admitted that such abuse took place, even as Obama political operatives tried to call it a “phony scandal” and conspiracy theory, and President Obama himself denied there was even a smidgen of corruption at the IRS.

While some liberal groups were caught up in such screening, by far the screening disproportionately damaged conservative groups, to the extent that such groups were kept on the sidelines during the 2012 electoral cycle.

The delay had the effect not just of limiting otherwise legitimate political activity, but forcing these groups to spend time and effort fighting the IRS, rather than fighting to win elections. Some just gave up.

The contemptuous behavior by IRS official Lois Lerner in refusing to answer questions and the loss of years of emails compound the impression that the IRS, as an extension of the Obama political machine, views itself as above the law.

Did IRS targeting swing the election for Mr. Obama? That’s hard to prove absolutely, but it certainly hurt the opposition.

It didn’t stop with holding up tax-exempt approvals.

Miraculously, as though just by mistake, the tax returns of the pro-traditional marriage group, the National Organization for Marriage, were leaked to a hostile activist group, which then targeted donors. The ensuing lawsuit was settled by the IRS, but not before the damage was done.

The administration also has waged a verbal war on the Koch brothers. A senior Obama adviser commented on Koch Industries’ tax returns, sending a chilling message even if no information was obtained illegally.

The use and abuse of the IRS to suppress and intimidate conservative speech will be a legacy of the Obama era.

Another misuse of government power has been the targeting of Republican politicians by overzealous prosecutors.

In Wisconsin, so-called “John Doe” proceedings commenced by a Democratic prosecutor targeted for investigation not just Republican Gov. Scott Walker, but a wide range of conservative activists. Those John Doe investigations proceeded to subpoena records, raid homes and seize all manner of communications under the guise of supposedly illegal political coordination.

There was nothing illegal about such coordination, as two judges have ruled, but the result was that much of the conservative movement in Wisconsin was frozen out of the political process, and others were afraid to interact with them for fear of being swept up in the investigation.

The taint of the investigations alone may swing this year’s gubernatorial election.

The mere presence of a wide-ranging investigation can suppress political speech, and in the case of Wisconsin, the targeted speech was conservative.

We also recently saw what appears to be a politicized indictment of Texas Republican Gov. Rick Perry for the alleged crime of threatening to use his veto power.

The essence of the prosecution is that Mr. Perry threatened to use his lawful veto power over funding to try to force a Democratic district attorney, tainted by a drunken-driving conviction and videotaped abuse directed at police, to resign.

At the instigation of a liberal policy group, that same district attorney’s office appointed a special prosecutor who obtained an indictment that is so suspect on its face that even unlikely liberal commentators such as Alan Dershowitz and The New York Times editorial board question the propriety of the indictment.

The key issue, however, is that prosecutors in Texas have sought to punish political speech by the conservative governor by criminalizing routine political hardball.

These abuses of government power to suppress conservative speech all had a common theme: Identify the target, then try to find a crime or excuse for government action.

This is a dangerous place for our nation to be.

William A. Jacobson is clinical professor of law at Cornell Law School and publisher of the Legal Insurrection blog.

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