Date: 1981-07-30
Speaker: PHILIP M. CRANE (republican)
Chamber: H

Mr. Chairman. I move to strike the requisite number of words. Mr. Chairman. as ranking minority member of the House Ways and Means Subcommittee on Oversight with Jurisdiction over the IRS. I strongly support the adoption of the amendment offered by Mr. ASHEROOK. A recent decision by the U.S. Court of Appeals for the District of Columbia greatly Increases the likelihood of a Federal court order adversely affecting the rights of every private and religious school In the Nation. The court ruled In Wright against Regan that the Wright plaintiffs have standing to sue for such an order. Writing for the majority. Judge Ruth Bader Ginsburg stated that the decision did not deal with thesubstance of the arguments In the case. But she did exactly that. she wrote an opinion that deals heavily with the substance of the issues. and she instructed the lower court to ignore many of the arguments that are important in the litigation. Ginsburg and Judge Skelly Wright. who joined her in the split decision. have compounded an already dangerous situation which was created by the mishandling of the litigation by the Internal Revenue Service and attorneys from the Justice Department. The Ashbrook amendment is necessary to end the crisis which had developed as a result of continued efforts by the Internal Revenue Service to implement unfair affirmative action guidelines. and quotas for taxexempt schools. The problem should have ended 2 years ago when Congress passed two amendments which prohibited funds for implementation of the proposed IRS rules. .Since that time. however. my office has made a careful study of this matter. and I have discovered a far more Intriguing scheme for bureaucratic abuse of power than I had previously suspected. What has emerged Is a very clear picture of collusive litigation In which the IRS Is the defendant. The IRS has acted to promote the interests of the Green and Wright plaintiffs who were suing the agency. Instead of properly defending Its case in order to win. the IRS suggested legal arguments In Federal court that would cause It to lose. and be ordered to Implement the same* type of regulations that Congress had prohibited. After reviewing the numerous Irregularities and unethical conduct of some of the participants In the Greenl and Wright cases. however. I have found that the most serious wrongdoing that should concernf the Congress Is that of the IRS and the Federal courts. Those who have studied the two court cases have properly termed the litigation a "sweetheart suit" because the IRS had more interest In losing Its case than in winning it. Although many agreements In the sweetheart suit occurred in secret meetings. the public record 1r. replete with abundant evidence to prove that the litigation was a sham. The chronological summary was Introduced by my colleague from California . It Is beyond dispute that the litigation was collusive. not adversarial. The evidence is clear from court records and public statements by IRS officials. First. The IRS publicly advocated the same position as the Green and Wright plaintiffs. namely. that the IRS should adopt the new regulations. Seconid. The IRS agreed to implement the proposed revenue procedure In secret meetings with the Green and Wright plaintiffs. The only third party Intervenor was unethically excluded. indeed. he was not even notified of these closed meetings to which the IRS admitted to having spent "many hundreds of hours." No disciplinary action has yet been taken against those attorneys who participated In this abuse of the intervenors rights. Third. The IRS lobbied against the Ashbrook and Dornan amendments. Fourth. Instead of defending the amendments. the IRS suggested legal interpretations that would lead the Federal court to Ignore the amendments. and cause the IRS to lose its case. The IRS lost. Fifth. The IRS made no effort to appeal Its loss In the Green case because it desired the results obtained by losing. When likeminded plaintiffs and defendants use the Federal judiciary to obtain mutually desired results. It should attract the attention of Congress. Whenever such sham litigation Is used to usurp the legislative authority of Congress. strong -action is required. All of this controversy has continued despite the fact that the IRS lacks a single sentence of statutory authority for its actions. How. then. does the IRS claim to have any authority for its actions? Former IRS Commissioner Jerome Kurtz gave us some insight Into the mentality which Is used for the IRS rationale In a speech of January 9. 1978: July -30. 1981 We have almost no specific statutory guidance. our authority and obligations on racial Issues derive from the constitutional doctrine in Brown v. Board of Education In 1954 and cases enforcing it. and from broad national policy announced in the 1964 Civil Rights Act. Kurtz further stated that these questions put the IRS "on the cutting edge of developing national policy." Authority. according to the IRS. comes not from written law. but from "national. policy" or as It is more often called public policy. Such a doctrine strikes at the heart of the r~ule of law under the Constitution. What is public policy? Who decides? The very first sentence In the Constitution provides the mechanism for Congress to enact a public policy into.a written statute If it Is to have the force of law. To do otherwise does violence to the Constitution and places free :.overnment In peril. For Congress to acquiesce to any other branchs attempt to rule In the name of public policy sanctions a mechanism which will Invite the most irresponsible and promiscuous -abuse of authority by unelected officials that our Nation has ever seen. It would write a blueprint for minority rule. a charter for elitist tyranny. If the IRS feels that It needs more authority. let the agency draft legislation and present It to the Congress for our consideration. No legislation has been forthcoming. Instead. the IRS proceeds down its reckless pathway. violating the civil rights of private and religious schools while reciting the specious arguments that It must conform to "public policy." Few have weighed the multiplicity of consequences of the course which the IRS now pursues. When the IRS applies its. perverse concept of public policy to religious institutions. for example. It necessarily federalizes religion. It makes religion subject to. the whims of unelected bureaucrats and Judges who Insist that religion must reflect public policy. Religious institutions are not Instruments of public policy. We have such a wide diversity of religious groups In this Nation that only the most foolhardy would begin to suggest that they must reflect and conform to public policy. Furthermore. if an integrated religious Institution Is denied tax exemption because of its refusal to comply with IRS quotas and affirmative action guidelines. we will quickly develop two classes of religious groups. those favored by the state and those that are not favored. We will return to an established religion. That Is what the first amendment was designed to prevent. It is significant to note that many of the favored. established religious groups that would be allowed to retain. their tax exemption advocate abortion. homosexuality and witchcraft. Other taxexempt organizations promote pornography. legalization of dangerous drugs. and distribution of contraceptives to minor children without parental consent. The Federal Government has no business in lending Itself to the assertion of the doctrinal supremacy of any such religious worldviews over those of lawabiding religious groups that rightfully oppose the wrongful federalization of their schools. The public policy arguments are attracting some of the harsh criticism that they deserve. Attorney Marvin Braiterman and churchstate specialist Dean Kelley of the National Council of Churches have cogently rejected any attempt to make religious institutions subject to public policy as a condition for tax exemption. They noted: If and when religious bodies show by prevalent misbehavior that they need more careful regulating. there will be time enough to propose closer strictures in the law But the burden of proof should be upon those who seek to justify such regulation. not upon religious bodies to resist it. and the. burden should be a heavy one. It should nol be deemed to have been met by pointing to a few isolated instances of supposedly scandalous behavior on the part of a few leaders or adherents of religion. particularly when most such instanccs could be dealt w!th by careful but conscientious application of existing law Even if public policy were a valid basis for the rule of law. which it certainly Is not. it Is the IRS and the Federal courts which now violate it. not the innocent private and religious schools that would unfairly suffer because of their actions. If our Constitution means anything concerning what might be called public policy. it clearly means that we have a public policy protecting private and religous schools against the abuses of power by the IRS and -Federal courts. There is no public policy that requires. or evei allows. what has been called a vendetta against these institutions. In every sense the actions of the IRS and the Federal courts are illegal and unconstitutional. The amendment makes it clear in the strongest possible terms that those actions are totally_ contrary to law and public policy.