I offer my own modest proposal.

An 11-year-old Florida student shot a smart-phone video of a teacher bullying a fellow student, publicly and in the classroom.  This same teacher has a Facebook page on which she posts photographs taken in the classroom.  The school’s principal also runs a Facebook page for the school, again featuring in-classroom media.

The student shot and publicized the video, thereby getting the teacher fired — as the teacher deserved to be.  The school’s principal then suspended the student, citing an alleged violation of the teacher’s “expectation of privacy.”  In a classroom.  Full of students.  In connection with a raised-tone-of-voice, everyone-in-ordinary-earshot-can-hear exchange with a student.  A public school teacher, paid by the taxpayers’ money.  You can’t make this shit up.  The thug rocket-scientist school principal is named Traci Wilke.

Although the student’s suspension was lifted before the five days were up, you really have to ask why this transparently improper punishment was meted out to a student who did nothing more, it seems, than identify someone who needed to be weeded out from the rest of the teaching profession.  Actually, we don’t need to ask, not at all.  As the linked article describes it, this was neither more nor less than “an obvious attempt at intimidation.”  See, kiddoes?  You mess with one of us, you mess with all of us.  Shut and keep your head down.  The NEA code of omerta strikes again.

It is gratifying to report that the student’s family has already hired a lawyer.  Part of any settlement agreement should requiring the principal to be fired and to execute a consent order agreeing never again to seek or accept any employment from any school or school system, at least in Florida and preferably nation-wide.  Someone whose sense of justice and propriety is so warped should never be entrusted with any group of people who by law are restricted in their ability to fight back.

But more to the point, how about this for a state-level fix?  A very simple statute:

“(a)  Except as expressly set forth in this section, all actions and omissions of any person holding any office or position, howsoever characterized, under the constitution or laws of this state, or of any political subdivision thereof, or of any agency or instrumentality thereof, in respect of all offices or positions so held by such person, shall be public matters of public import and concern.

(b)  Notwithstanding any provision of the law of this state or of the United States to the contrary, no person holding any office or position, howsoever characterized, under the constitution or laws of this State, or of any political subdivision thereof, or of any agency or instrumentality thereof, shall have or claim any expectation of privacy or other privacy interest, howsoever characterized, in respect of any matter arising from, relating to, or connected with such person’s holding of such office or position.  There shall be no cause of action under any theory whatsoever in favor of any such person for the otherwise lawful gathering, recording, storing, publication, or other dissemination of any information in respect of such person’s actions or omissions in respect of any office or position so held by such person.

(c)  The acceptance by any person holding any office or position under the constitution or laws of this State, or of any political subdivision thereof, or of any agency or instrumentality thereof, of any compensation, perquisite, or other benefit of such office or position, of any kind, character, or description whatsoever shall conclusively be deemed to constitute a waiver, for all purposes and to the fullest extent permitted by any applicable law, of any claim to or expectation of privacy in respect of such person’s actions or omissions in respect of such office or position and otherwise existing under any provision of the laws of this state or the United States.

(d)  The provisions of this section shall not supersede — 

      (i)  those provisions of the law of this state specifically exempting from public disclosure items of personal information generally exempted from disclosure pursuant to the provisions of ____________________; 

      (ii) the laws of this state in respect of defamation; or,

      (iii)  the laws of this state in respect of the permissible methods of visual or audible recording of the speech or actions of another person.”

Reference in the blank would be to the statutes containing that state’s public records disclosure statutes, and to the exemptions from them (in other words, just because you happen to be a state judge doesn’t mean your Social Security number ought to be disclosable).  On the other hand, I don’t see why that state judge should be able to claim an expectation of privacy as to any matter having anything to do with that judge’s execution of his office.

Note that “not having an expectation of privacy” is most emphatically not the same thing as “subject to public disclosure upon demand.”  A right of privacy is a right that is personal to you.  To use an example from private life:  I have no personal interest in the privacy of my communications with my clients.  Those communications are protected by the attorney-client privilege, but that’s a privilege that (a) belongs to the client, not me, and (b) can be waived by the person to whom it belongs.  Thus, our hypothetical state judge’s deliberations, either with his fellow judges (on a multi-judge tribunal), or his law clerk, or even a buddy of his who happens to be a judge elsewhere, may not be subject to forcible disclosure by some member of the general public.  But if a secretary (or law clerk, or just Joe Bloggs who happens to overhear the judge talking in a restaurant) hears the judge and his buddy sitting around a table discussing how best to screw a political enemy, or ruling a particular way in order to “send a message” to some person or group, and decides to record it, then by God that’s a public service for which the person recording should be commended (and the judge impeached and then disbarred, of course).  The judge himself should not be heard to allege that his “privacy” was invaded by someone catching him violating the trust of his office.  As Traci Wilke, whom I’ll just go ahead and declare to be the most fire-able principal in America as of this afternoon, has done.

Just my humble contribution to the good of the public.

[Update 31 Mar 15, 12:39 p.m.]:  In my discussions-in-chambers hypothetical, the judge’s not having a right of privacy in those matters is also not the same thing as public disclosure of them not being a firing offense, unless protected by a whistleblower statute or similar common law rule.  Again, it’s not the judge as an individual firing the discloser, but rather an agent of the state, and what is being punished is not some violation of the judge’s legitimate privacy interest, but rather a violation of a law to keep confidential matters that are in fact and (if otherwise lawful) ought to be exempt from public disclosure.  The long and short is that everything you do and say in your capacity as a public official belongs to your government and to the people who have constituted that government.  It does not belong to you and you have zero — absolutely bugger all — right to keep it under wraps to protect yourself.  Therefore no disclosure of it can injure you in your personal capacity.

From time to time you hear much moaning about how election of judges somehow introduces “politics” and “money” into the pristine world of the judiciary.  It’s an “attack on the independence” of the judges, we’re told.  It corrupts the process, we’re told.

I don’t think you can deny that election of judges introduces a political element into that branch of government.  Of course it does.  On the other hand, the appointment of judges is also highly politicized, and anyone who doesn’t think that happens is a drooling imbecile who does not deserve to be taken seriously.

Here in my own humble federal district we have two egregious examples.  One of our U.S. district court judges is married to a fellow who just happened to be one of the chief fund-raisers for a very prominent politician from around here.  A national, and even to some extent, world-wide prominent politician.  The fellow’s wife, who did not and does not enjoy any particular reputation for brilliance either as a lawyer or judge, somehow got herself on the local bankruptcy court bench (where the debtors’ lawyers found her to be dumb even by that court’s standards), and then equally magically fleeted up to the district court bench.  Where she will be until she drops dead or gets tired of it.  Another lawyer around here is a big union lawyer (that’s hard to do in a right-to-work state where unions have never been strong and are even weaker now); his firm even has the little union “bug” at the foot of its stationery.  His wife, whose practice revolved heavily around leveraging local political connections and who is equally undistinguished otherwise, is now on the federal appellate court for our circuit.  To pretend that either of those individuals got where they are by any means other than pure money politics is insulting to the listener.

Well, if both methods are riven with politics and money, what is the material point of distinction (if any)?  I’ll suggest the point of distinction lies in the answer to who makes up their constituency.  Is it the voters of the state at large, or is it a coterie of political insiders, mutually assisting each other to prominence through government connections?  I know which I prefer.  If a judge is going to have to suck up to someone to get his job, I’d just as leave that someone be me.

Can we agree that both election and appointment are, except in the single respect outlined above, indistinguishable on the issue of the role played by politics and money?  So how about garden-variety competence?  I pay attention to what happens in the court systems, both federal and state around here.  It’s sort of my job.  For the life of me I cannot tell that either method of selection is better about putting highly competent, highly ethical, and highly . . . judicial (for want of a better adjective) candidates on the bench.  Neither seems to do very well at picking all-stars or avoiding idiots.  Neither seems to do very well at picking judges who will not play favorites, or home-cook, or interject their personal politics into their decisions.  Neither does a very good job at identifying and avoiding those susceptible to black-robe fever.  In fact, the only argument in favor of either method of selection is that short of drawing lots for compulsory judicial service, no method conceivable and practicable would be any better at those things than the two we’ve got.

Does that leave us with anything to choose between the two?  I suggest we do have such a point on which to base a decision.  Which of the two methods makes it easier to get rid of the objectionable judges?  I think popular election to be the hands-down winner there.  Granted, it’s not easy.  Very, very few judicial recalls succeed, at least at the appellate level.

Rose Byrd out in California took it in the shorts a number of years ago, for her habitually far-left decisions.  Penny White in Tennessee paid the price for an outrageous capital punishment decision, when that supreme court ruled that, as a matter of law, an escaped felon’s raping a 70+ year-old virgin, stabbing her, and leaving her to bleed to death on the rear floor of her own car was not sufficiently “heinous, atrocious, and cruel” (as I think the relevant statute provided) as to support a death penalty.  As a matter of law, and bugger what twelve jurymen who’d heard all the proof, seen all the witnesses, and then unanimously decided otherwise had to say.  A couple of years ago a group of judges in either Kansas or Nebraska got run out of town, but just this month three supreme court judges in (once again) Tennessee survived a very well-financed effort to show them the door.

Un-election of trial-level judges is not always that difficult, but you still have to find a lawyer who’s willing to run and willing to deal with the fall-out of an unsuccessful effort.  Any candidate who’s willing to challenge an incumbent has to ask himself how well his practice is likely to do if he makes an enemy of the fellow he made actually run.  And if the incumbent is also tight with the other judges on that court, you have to ask what will that do to a lawyer’s livelihood if suddenly everyone in town knows that whenever a decision on any particular point could go one way or the other, that particular lawyer will never see one go his way.  The result of course is that you very seldom see a challenge made to an incumbent unless he’s commonly despised by both the bar and his colleagues.  While not a fool-proof standard, most judges don’t receive that degree of contempt unless they’ve well earned it.

Appointment, on the other hand, and especially lifetime appointment, produces statements like this, from a sitting U.S. Supreme Court justice:  According to Justice Ginsburg the “turmoil” in Ferguson, Missouri indicates that there is “a real racial problem” in America.  And the court is doing “little to help.”  This, by the way, from someone whose exposure to the lives and problems of ordinary Americans is likely limited to something asymptotically approaching zero.  She’s got no more clue as to how people in Ferguson (or in 99.9998% of other American towns, for that matter) live than she does of how Marines survive in modern combat.  So we can agree that she’s comfortable running her mouth about things that are closed books to her.

Where her comments really suggest that she could do with a contested election is her statement to the effect that once upon a time, the philosopher-kings of the Supreme Court were “leader[s] in rooting out discrimination,” citing specifically one of the worst-reasoned cases in recent decades, the Duke Power case, as what once was and should still be the court’s approach to “rooting out” things it doesn’t like.  Duke Power formally accepted the proposition that actionable discrimination can exist where a facially-neutral rule (such as, we have to assume in Ginsburg-land, “Do not beat police officers so badly you fracture their skull and they have to go to a hospital”) has a “disparate impact” on an identifiable group which you happen to favor, because their volitional behavior under or in response to that rule produces results that are distasteful to them, or as the ABA cheerleaders characterize the approach, “to evaluate polices that are neutral on their face but have a disproportionate impact on minorities.”

Notice, by the way, how the concept of “minorities” is divorced from the concept of “behavior” and “choices made.”  Here, let’s try another policy that is “neutral on its face” but that has a measurable “disproportionate impact” on “minorities”:  the rule that only licensed attorneys are eligible for most judicial office.  Obviously that policy is going to preclude the overwhelming majority of the “minorities” that are presently in favor with  the extreme-leftists of the ABA from holding judicial office.  For instance, a terrifying proportion of black males are convicted felons by the time they hit age 35 (if they live that long).  You can, and people do, honestly debate the policy of the statutes under which they are most frequently convicted (read: “war on drugs”), but unless something changes, those statutes are in fact the law and conviction of their violation in fact does establish you as a convicted felon.  Period.  And in pretty most states, convicted felons are for all practical purposes ineligible for admission to the bar, even if they pass through law school walking on water and parting it for those who can’t.  The alleged policy of restricting judicial office to lawyers is that supposedly only lawyers can be trusted not to bugger up decisions that impact people’s lives and fortunes.  I might accept that, except that for generations that was not the law and I’m not aware that the quality of jurisprudence back then was identifiably worse than it is now.  Further, a felon can lose his law license by reason of his conviction.  He’s not a lawyer any more, but you can’t show that his having been convicted has made him a damned bit less learned in the law.  Alternatively, you can know a boat-load about the law without ever holding a law license.  Case in point:  Herb Wechsler, one of the most respected constitutional scholars of the last half-century (he taught at Columbia) was not a lawyer.  Further, unless you’re willing to accept the proposition that all lawyers are equally qualified to be judges <sound of snot bubble blowing and bursting>, then you cannot allege that merely holding a law license qualifies you for judicial office.  Oh, but the Deep Thinkers will respond, that’s why you restrict the selection process to responsible political leaders, who will vet nominees and who will hold exhaustive confirmation hearings to ensure that Only the Best Need Apply.  Remind me again how holding a law license enables that process to work as designed?  Is a legislative panel unable to tell a numb-skull when presented with one unless he holds a law license?  Does holding a law license somehow make your character more transparent, so that an Alcee Hastings will sit revealed as a criminal when he comes before a senate judiciary committee (answer: no)?

In short, you’ve got a rule that has absolutely no verifiable relationship with the ill which it is supposed to avert, and yet which automatically excludes millions of Americans from holding judicial office.  So why then is it not unconstitutional, on a disparate-impact test, to require a law license for a judge?

I admit the lawyers-only rule is an extreme example.  Let’s look at something more prosaic:  school disciplinary rules.  The United States Department of Education now formally takes the position that even if neutral rules of discipline are administered absolutely, perfectly impartially, if members of a favored group get disciplined under them more frequently, that in and of itself can establish discrimination under the “disparate impact test.”  Let’s go to the money quotation:  “Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race. The resulting discriminatory effect is commonly referred to as ‘disparate impact.'”  Lest Gentle Reader think I’m cherry-picking an upper-level summary and quoting it out of context:  “Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense – such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform[.]”

Thus, even if a black child who takes a baseball bat to a school locker is neither more nor less likely to be punished, and at an indistinguishable level of severity, than the child of Korean immigrants who similarly amuses himself, if just by the numbers more black children are punished under that rule because more black children engage in that behavior, then the rule is constitutionally suspect.

Justice Ginsburg thinks this is a swell way to run a school.  I’ll kiss your ass under every red light in town if either her children or grand-children have ever had to try to learn geometry in a classroom run along those lines.

Oh but “disparate impact” is harmless, Gentle Reader might say.  I mean, c’mon — school rules?  Can’t you think of something weightier than school rules?  Show me something with some substance to it.  Show me something where tip-toeing around a minority because that’s what they do actually has caused someone some harm.  Show me, in short, a reason to think that fuzzy-headed thinking like Ginsburg’s actually poses a risk to ordinary people in ordinary circumstances.

By curious happenstance, I can.  There’s a city in England, Rotherham, of about 250,000 people.  Roughly 8% of its population is Pakastani (whom the politicians and newspapers insist on describing as “Asian,” as if they were indistinguishable in their habits from the folks living in Rotherham whose ancestors came from Hong Kong).  For 16 years now the police and the town council have been fully aware (in fact numerous written studies were commissioned and completed) that organized gangs of Pakistani males, ages 20-30, have been systematically preying on white girls as young as 11 and 12 years old, gang-raping them, whoring them out, and generally sexually exploiting them.  Books, in fact, have been written by survivors; they have been interviewed and those interviews published.  As long ago as 2007.  The minimum known number of victims is around 1,400, although the true number is likely to be well in excess of that.  One thousand four hundred.  One of the children referenced in one of the many official reports was having sex with up to five men . . . at age 12.  One of the perps was caught with a pre-teen victim, drunk in his car, and with naked pictures of her on his cell phone.  She was 12 at the time (she was already known to the police; they’d identified her at age 11 as having sex with adult males); he walked.

All this was known.  Known to the police.  Known to the child welfare agencies.  Known to the town council.  And not a damned one of them did anything.  Not.  One.  Goddam.  Thing.  Why not?  Well, let’s let the MP from Rotherham for 18 years tell it like it was:  “Denis MacShane, MP for Rotherham from 1994 to 2012, actually admitted to the BBC’s World At One that ‘there was a culture of not wanting to rock the multicultural community boat, if I may put it like that. Perhaps, yes, as a true Guardian reader and liberal Leftie, I suppose I didn’t want to raise that too hard.'”  But why Pakistani males and English girls?  Surely the Pakistani males could have had much easier access to their own girls, right?  “There are other hopeful signs. The Rotherham scandal seems temporarily to have silenced those who insist, every time a child-grooming case is exposed, that most paedophiles are white. Indeed they are; but the Rotherham abusers were not paedophiles. They were men of Pakistani heritage slaking their lust on young girls they regarded as white trash because they knew they could get away with it.”

Because they could get away with it, and knew they could get away with it.  Because the law was not enforced against them.  “Perhaps we should expect no more when community preservation is outsourced to bureaucracies, but the unavoidable reality is that on many occasions, Rotherham police came upon children being sexually exploited—in some cases, in the very instance of being raped—and arrested no one. The perpetrators are Pakistani; they might call us racists. The children seemed to consent. These gangs are violent.”

In short, because enforcement of the laws against gang-raping 11-year-olds might have had a “disparate impact” on a minority.  In Rotherham we see the logical conclusion of the philosophy that Justice Ginsburg thinks such a wonderful thing.

And this is why we need an elected judiciary.

. . . because it looks like we may have a show to watch.

A federal judge has rejected the IRS attempt to screen from public scrutiny how it has systematically targeted certain political groups for discriminatory treatment.  The group in this lawsuit is not a Tea Party related group, but a group whose mission is to educate the public on the actual state of affairs in the Middle East, particularly with reference to Muslim efforts to annihilate the state of Israel and slaughter such Jews as they can lay hands on.

Z Street applied for 501(c)(4) status in December, 2009, eleven months into the Era of Hopenchange.  In July, 2010, their counsel spoke with an IRS agent (whether he’s still employed there I’d like to know), who mentioned that the application was going slowly because it had been sent to Washington for “special scrutiny” as being connected to Israel and having views that “contradict those of the administration.”  Get that?  Express a view that Dear Leader doesn’t agree with and you get your very own set of legal rules you have to satisfy.

So Z Street sued.  The IRS took the positions that (i) it had no right to sue, and (ii) the IRS enjoys sovereign immunity.  Seriously.  They filed stuff in court that said that.

The court has now finally ruled that the IRS is talking through its hat.  The complaint squarely challenges the constitutionality of the process, the court ruled; this isn’t just some dispute about tax liability.

As The Blogfather has observed in other contexts, discovery in this one should be fascinating.

So the other morning, well before sunrise, I’m lying there in bed wide awake and trying not to think of anything that will keep me awake.  No, that didn’t work out real well.

I am of course a lawyer.  In fact I am a country lawyer.  My clients are area pepole and businesses, their families, and so forth.  Not exactly the book of business that a large city firm is going to bring me in as a partner to acquire, as I think I’ve finally got the wife to understand after almost 20 years of this.  But my clients like anyone else are tremendously keen on their own privacy, and are entitled to be that solicitous of it.

Back in the late-middle 1990s, there was a formal ethics opinion released (can’t recall whether it was our state ethics weenies or the ABA) on the propriety of communicating with clients via e-mail.  The opinion allowed that it was acceptable, and the stated reason for that conclusion was that there was no reason to suppose that e-mail was any materially less secure than the U.S. postal system.

Errrmmm, fellows:  That assumption is no longer warranted.  The few things that have been disclosed about the surveillance capabilities are frightening enough.  The one thing of which we can be sure is that the Director of National Intelligence is willing to lie to Congressional committees.  So are the senior staff of the IRS.  So is the U.S. Attorney General.  So is the former Secretary of State.  And so forth.  We must therefore assume that we have not been told the full extent of what they can do, what they have been doing, what they have been doing with it, and to whom that information has been further disseminated and for what purposes.

Thus, yesterday I sent the following letter to the chairman of our state ethics weenie commission:

I am writing you in your capacity as chair of the Board of Professional Responsibility to request a formal ethics opinion from the board in respect of the following questions:  

Q: What duty does a lawyer in  have to advise those of his clients with whom he communicates telephonically or via e-mail of the existence of federal domestic espionage programs under which undisclosed amounts and kinds of information and data is harvested from those communications by undisclosed agencies to be used for undisclosed purposes?  

Q: In light of the known existence of domestic espionage programs of undisclosed intent and purpose, may a lawyer ethically continue to communicate with his client other than face-to-face or via paper mail, with or without disclosure of the risk of espionage?  

Formal guidance on the subject for the practicing bar in <my state> is necessary because recent revelations – which I must emphasize are very fragmentary – render incorrect the foundation of the board’s earlier formal opinion that electronic mail is a permissible form for attorney-client communications. That opinion expressly stated as its basis that there was no reason to assume that e-mails were any less secure than the United States Postal Service. While no doubt true at the time, no reasonable person can make that assumption after what has come to light in the past weeks.  

I also emphasize that formal guidance from the Board is indispensable because as now appears to be indisputably the case, various agencies of the federal government are in fact willing to cooperate with each other in using the information each gathers for partisan political purposes. It is now conceded that the Internal Revenue Service targeted for adverse action an entire segment of the American political spectrum, and that at least some of the targets of its attentions were then subjected to otherwise-unexplained attentions from ostensibly unrelated federal agencies (e.g., the ATF and OSHA), or other divisions within the IRS itself, such as gift tax audits of donors disclosed on tax-exemption applications. It is likewise now known that the Service released to its political opponents confidential information in respect of an applicant for a tax-exempt ruling while the application was pending – a criminal offense.  

Under such circumstances no reasonable person may assume that the contents of any communication which is subject to being monitored – as we now know e-mails and telephone calls to be – will not be harvested, disseminated beyond its announced user, and deployed in manners directly targeted at one or more of the specific parties to a communication, for the purpose of injuring that party’s interests. Protestations to the contrary by federal bureaucrats are not entitled to be believed, whether made under oath or not.

I must say that I have no reasonable expectation of hearing back from them, either personally or via actual action on their part. 

 In the meantime, I have added to my usual “please trash this if you’ve received it erroneously” and IRS Circular 230 notice e-mail “signature” the following:

Federal Domestic Espionage Warning.  This e-mail may be routed over communications networks which are the subject of active, non-disclosed monitoring and recording by agencies of the United States government and/or its contractors under one or more programs which may or may not be authorized by statute and/or permissible under the U.S. Constitution.  The nature and extent of information gathered through such espionage have not been disclosed, nor have been disclosed the purposes to which such information is put, nor have been disclosed the identities of any other agencies or entities to which such information is further disseminated.

At least they can’t accuse me of ignoring the issue.

[Update 05 Dec 13]  Back when I sent my request to the ethics weenies, I received what is likely their standard-form reply (reminiscent of “send this bastard the bedbug letter” of railroading fame) that they’d take it up at their September, 2013 quarterly board meeting.  It will surprise no one any more than it did me that I have yet to see any indication that they have engaged with the issue.  And of course the extent and detail of the monitoring that has been revealed in the interim has only got more alarming.  We now know, for example, that the NSA routinely shares information with law enforcement agencies, among them the DEA.  So how, if you practice criminal law, especially federal criminal law, do you communicate with your clients?  And if you practice immigration law?  Or in fact if you practice any kind of law where you have a federal or state agency as the adverse party?

Everyone is familiar with the notion that the Nazis came up with the concept of a nation-wide system of high-speed, limited access, heavy-capacity highways.  The story about Eisenhower being so impressed with them that he decided to cover Atlanta in concrete may or may not be apocryphal.  But just because a bunch of guys up to their eyebrows in innocent blood came up with the idea that we now know as the interstate highway system doesn’t mean it was or is a bad idea.  By like token the observation that the road to hell is paved with good intentions reflects the flip side of that coin.

It’s now breathlessly reported that Intuit, the folks who brought us Tim Geithner TurboTax, which permits millions of Americans to navigate, more or less successfully, a tax code that may as well have been designed to thwart that purpose, has spent quite a bit of money lobbying against having the IRS send you a “free” pre-filled-out tax return for you to amend, or not, sign, and send back with your money.  I don’t think anyone with more than just walking around sense is going to suggest that Intuit’s motivations here are anything other than stifling competition for its products.  If the government were to — on the pretext of reducing “greenhouse gases” — open a nation-wide chain of oil-change and tune-up boutiques, what do you think JiffyLube, Speed Lube, and the other major operators are going to do?  Just sit there while a taxpayer-subsidized competitor destroys their business model? 

Remember that “taxpayer-subsidized” means your competitor is not exposed to the vicissitudes of having to Get It Right.  That’s not an unfounded concern, either.  Part of my ability to stay in business is through knowing my job and my industry better, and delivering a better product at a lower cost to my customers, when my ability to set my cost to my customers is a direct function of how low I can keep my own costs.  Taxpayer-subsidization means that my competitor’s ability to beat me fair and square is not contingent upon his knowing his shit better than I do.  It doesn’t matter if he’s an idiot and his costs are sixteen times mine; he can still offer his products and services for half what I have to charge to make payroll and keep the lights on (let alone take something home to make the house payment and put a can of baked beans in front of the chillerns).  And because I’m a taxpayer too, my taxpayer-subsidized competitor is subsidized . . . by me.  And by the way, once he’s driven me and all the other un-subsidized competitors out of business, what’s the likelihood that his products and services are going to continue to answer the customers’ needs in a positive manner?  To put a more concrete face on it, what if Congress said that it was going to underwrite the entire cost of USPS package and parcel delivery service?  What’s going to happen to FedEx, UPS, Averitt, and the rest?  What’s going to happen to customer service in the package and parcel trade, once USPS is the only provider because no one else can match its prices?

But it gets better:  Notice how the putative IRS service is touted as “free”?  Well, it’s only “free” to the people who use it to file their tax returns.  It’s anything but “free” to the taxpayers who are paying for it.  Paul Caron, who blogs over at TaxProfBlog and whose ruminations on tax-related subjects are generally stellar (he regularly is voted by the ABA membership, with reason, as one of the top 100 law-related blogs), notes that this “free” service could be a good fit for up to 40% of all filers.  Well isn’t that grand?  I can’t say with certainty how much overlap there is between the 40% of all filers who would be suitable to use this Countrylawyer-subsidized tax-preparation service and the over 40% of the population that pays zero income tax, but I’d wager there’s quite a bit.  Let me get this straight:  I, who every quarter have to sweat how I’m going to pay my quarterly tax hit and pay the mortgage at the same time, get to subsidize a “free” service for the principal benefit of a bunch of folks who have either little, zero, or negative tax liability (the EITC crowd).  And kindly don’t suggest to me that the subsidy won’t be all that much.  California is at $910 million and counting (they asked for just over $940 million, by the way) on setting up their Obamacare exchange, when a private company — Esurance — that performs exactly the same functions as these “exchanges” for all sorts of personal lines insurance (not just healthcare, in other words) all over the country got off the ground for less than $50 million.  And in fact the linked article even mentions that the jury’s not back on whether this wonderful “return-free” system would save or cost the IRS money, on net.  Sorry, guys, this “free” stuff just ain’t gettin’ it for me.

Thus, while I’m not going to take Intuit’s arguments against “free” government tax statements, I’m also not going to write those arguments off as being invalid because selfishly advanced.

Other opponents of the notion point to the government over-reach angle of it.  Get a “filled-out tax return” from the government, based on information it claims already to be in possession of, and what does Joe Citizen do?  “Gosh, they say this is the information they have; if I deny it, am I just asking to get audited?”  Or the folks who think they’re signing up for a free tax filing service and who think that what the government sends them is an actual tax bill, which they then have to pay, and so they do.  Let’s think about this in an analogy to another situation in which a government agency not known for its friendliness to and accommodation of those citizens it does business with — your local DA’s office and police department — sits an arrestee down and shoves a bunch of papers in front of him:  “Son, this is what we’ve got on you.  You don’t have to sign this confession; you’re free to mark it up if you want.  But we’ve got you on this.”  Arrestee doesn’t have a lawyer.  Does he sign?  Is anyone going to argue that’s a really neat way to do business?  Does anyone fail to see how the IRS dealing with taxpayers in the same fashion parallels the objectionable elements of this hypothetical?

Oh but the IRS would never, ever do something like this, would it?  I’ll simply observe that this is a governmental agency which officially takes the position that a taxpayer may not rely, in preparing his tax return or paying his taxes, on the answers given to him on the IRS’s own customer service lines, established for precisely the purpose of giving taxpayers assistance with complying with their tax obligations.  I’m supposed to accept, blindly, this outfit’s goodwill and promise not to dress up its “free” pre-filled-out tax return to look like a tax bill?  Not to put its thumb on the scales and overstate citizens’ tax liability, on the theory that not one in four will be willing to check their numbers or pay a third party to do a reality check?  Not to flag for audit the returns that come back to them with disputed numbers?  I may be dumb as a box of hammers, but I’m not dumb as a quarter-box of hammers.

On a more value-neutral matter, having the government <nudge-nudge> fill in your tax return for you has the effect of concealing from the taxpayer the complexity and burden of the tax laws.  What would be the public reaction if local jails routinely kept prisoners rotting in their own filth, but drugged to the point of unconsciousness?  Is it a violation of my 8th Amendment rights if I have no idea where I am, who I am, what day of the week it is, or anything else?  One of the more salubrious side-effects of making citizens grind their own way through their annual tax returns is that it rubs our noses in just how buggered up our tax laws actually are.  It serves as an annual dose of outrage at what goes on in Washington.  I will state here as a categorical proposition that anything which fails to heighten Americans’ sense of outrage at how badly managed our country is can be nothing but bad policy.

Finally, there is a point to be made as to which I am of two minds.  For starts, I am entirely opposed to rent-seeking behavior, such as much of that engaged in by the legal system.  There’s a reason, after all, that you’ll seldom see the ABA get behind any legal reform which is likely to reduce the amount of lawyering that ordinary Americans and American business need to get from one day to the next.  You’ll never see the ABA’s monthly trade magazine ask whether Issue X is something that the law and the court system really need to get involved with in the first place.  A number of years ago one of the senior judges on the Second Circuit Court of Appeals (can’t recall his name, now, alas) let the cat out of the bag at some law-related conference.  He observed that if you pay close attention to how courts decide cases, you’ll almost never see an opinion cast in a way which fails to maximize the power and influence of lawyers and judges.  The notion that there even exists a multi-billion dollar tax preparation industry out there, which has no human purpose at all other than satisfying a gratuitously complicated and confiscatory system of tax laws, offends me. 

On the other hand, we do in fact have a gratuitously complicated and confiscatory tax system.  So long as we do, citizens are going to require help to navigate it.  There are private people and companies willing to do that, for a fee.  While the necessity for that service is an abomination, the fact remains that it is a necessary and valuable service which one private party may provide to another private party, to their mutual advantage.  And the other side of me has a serious problem with the government undertaking to do, and shifting the cost of doing to unknown third parties, anything which private citizens can accomplish in an orderly, efficient fashion.

I have to say, on the balance I’m with Intuit on this one.