The big IRS news today is that Lois Lerner, the IRS director who oversaw the Cincinnati unit charged with discriminating against the tea party, intends to plead the fifth when she appears before Congress later today.
“She has not committed any crime or made any misrepresentation but under the circumstances she has no choice but to take this course,” her lawyer, William Taylor III, wrote in a letter to Rep. Darrell Issa. Taylor went on to ask that Lerner be excused from appearing, as given the circumstances, it would "have no purpose other than to embarrass or burden her.” I imagine Issa's staff had to be physically restrained from replying with a note that simply said, "lol."
So far, the only head that's rolled at the IRS is that of acting director Steven Miller. There's a reason for that: Miller was in the top spot, and could easily be fired. As Politico reports Wednesday, the process is considerably more cumbersome as you climb down into the civil service:
Under federal rules, a fired government worker has the right to appeal to the Merit Systems Protection Board. He or she can challenge the decision, argue that their actions don’t meet the threshold for termination and ask to be reinstated — especially if there was no warning of trouble in past performance reviews.
The board is set up so fired employees appealing their termination get two chances to prove they should stay. Their first stop is at the merit board’s regional level, which — for the Cincinnati-based IRS employees in question — would be in Chicago.
The initial appeals take an average of 93 days to process, said William Spencer, a spokesman for the board.
If the regional board rules against the IRS employees, they could appeal to the national Washington, D.C.-based board, which takes on average another 245 days.
The IRS employees wouldn’t collect a paycheck during the appeals process. They would get back pay only if they are ultimately reinstated.
Max Stier, who heads Partnership for Public Service, a nonprofit that recommends ways to improve the federal workforce, says it’s “not impossible” to get rid of federal workers. In 2012, he says, 8,755 federal workers were fired, and others likely resigned to avoid the ax — although there are no estimates of how many because it’s hard to track those kinds of departures.
Put simply, firing civil servants takes a long time, creates a lot of hassle for management, and needs to be for cause. If it's not for cause, the termination can be overturned, and the entire process would be for naught. This can lead to excessive reluctance on the part of management to go through the trouble of firing anyone. But what remains unclear in the IRS case is whether the directors even wanted to fire anyone.
In Tuesday's hearing before the Senate Finance Committee, Chairman Max Baucus asked this question directly: "Why weren't people then fired or transferred? More significant action taken than just told, 'Don't do this,' given how outrageous this conduct is? Why wasn't more definitive action taken?"
The answer appears to be that in at least one case the IRS attempted to take a half-measure. "I took some some intermediate action, pending [the Inspector General's report], we transferred and reassigned an individual who had been involved in the letters, and I asked that the person who I believed at the time was responsible for the listing, that oral counseling occur," Miller testified. The implication here is that the IG report would provide the definitive evidence necessary to tip the scales towards either firing that employee or letting them stay on.
But the broader answer appears to be that agency leadership simply doesn't believe the IRS targeted conservatives. Doug Shulman, the Bush appointee who was IRS director until November, was clear on this fact. "Frankly, the concept of political motivation here, I did not agree with that in May. I do not agree with that now," he told the committee." We were not politically motivated in targeting conservative groups. That's borne out by [the IG] report."
That's actually not borne out by the IG report. The report doesn't prove that the criteria was politically motivated or that it wasn't politically motivated. But it almost doesn't matter.
The gravest scandal here would be to find that the IRS was ordered to harass tea party groups by some outside entity connected to the Obama administration or campaign. There is, at this juncture, absolutely no evidence of that. This is an issue the IG report addresses directly: "We asked the Acting Commissioner, Tax Exempt and Government Entities Division; the Director, EO; and Determinations Unit personnel if the criteria were influenced by any individual or organization outside the IRS. All of these officials stated that the criteria were not influenced by any individual or organization outside the IRS."
A few steps down from that would be the revelation that a rogue group inside the IRS developed this criteria as a way of influencing the election, or American politics. Shulman says he doesn't believe that happened, and his actions are consistent with that belief.
But then there's the offense that everyone agrees did occur: A number of IRS employees developed criteria that was politically biased both in appearance and in effect. They were reined in once by their superiors, and then they changed the criteria again, and had to be reined in a second time. Their actions called the fairness of the agency into question and kicked off a national scandal. Even if their intent was pure, they showed bad judgment, more than a bit of incompetence, and perhaps even a touch of insubordination. That is reason enough to fire people, even if the process is difficult.