Lois Lerner at the FEC

by Eliana Johnson
Before her IRS tenure, Lerner subjected conservative groups to heightened scrutiny.

Before Lois Lerner was embroiled in the IRS scandal, she was involved in a questionable pattern of law enforcement at the Federal Election Commission that mirrors the discrimination recently exposed at the nation’s tax-collection agency.

One of Lerner’s former colleagues tells National Review Online that her political ideology was evident during her tenure at the FEC, where, he says, she routinely subjected groups seeking to expand the influence of money in politics — including, in her view, conservatives and Republicans — to the sort of heightened scrutiny we now know they came under at the IRS.

Before the IRS, Lerner served as associate general counsel and head of the enforcement office at the FEC, which she joined in 1986. Working under FEC general counsel Lawrence Noble, Lerner drafted legal recommendations to the agency’s commissioners intended to guide their actions on the complaints brought before them.

“I’ve known Lois since 1985,” says Craig Engle, a Washington, D.C., attorney who from 1986 to 1995 served as the executive assistant to one of the FEC’s commissioners and later worked as general counsel to the National Republican Senatorial Committee. “I’m probably one of the few people in Washington who really knows her whole career as opposed to those who have come across her lately.”

Engle describes Lerner as pro-regulation and as somebody seeking to limit the influence of money in politics. The natural companion to those views, he says, is her belief that “Republicans take the other side” and that conservative groups should be subjected to more rigorous investigations. According to Engle, Lerner harbors a “suspicion” that conservative groups are intentionally flouting the law. 

General counsel’s reports composed during Lerner’s tenure at the FEC confirm Engle’s recollections of a woman predisposed to back Republicans against the wall while giving Democrats a pass. Though Noble, then the FEC’s general counsel, is listed as the author of the reports, sources familiar with the commission say that given Lerner’s position, she would have played an integral role shaping their conclusions. “As head of enforcement at the FEC, Lois would have approved the drafting of every general counsel’s report,” Engle tells me.

Contributions from foreign nationals, in one instance, drew more scrutiny when they reached Republican coffers than when they fell into the hands of Democrats.

After the Republican National Committee, under the chairmanship of Haley Barbour, established the nonprofit National Policy Forum in the run-up to the Republican takeover of Congress in 1994, the Democratic National Committee accused him of using the organization to funnel money from a Hong Kong national to the RNC. The foreigner in question had loaned the National Policy Foundation $1.6 million, and the foundation used the money to repay a debt to the RNC. The FEC’s general counsel concluded that both Barbour and RNC treasurer Alec Poitevint had “knowingly and willfully” violated federal law.

A prolonged investigation led to a stalemate among the FEC commissioners, who deadlocked along party lines and took no action against Barbour or the RNC. A subsequent investigation by the Department of Justice concluded that the loan did not constitute a political contribution.   

Democrats in a similar predicament were treated more leniently, with Lerner in one instance citing a donor’s political clout as an excuse to avoid investigating him. The House Oversight Committee was not pleased, and in 1998 held a hearing on the FEC’s failure to investigate the fundraiser, Howard Glicken, who was accused of soliciting a $20,000 contribution for the Democratic Senatorial Campaign Committee from a German national. (Glicken later pleaded guilty to doing so and paid a $40,000 fine to the FEC.) With Lerner seated before him, committee chairman Dan Burton (R., Ind.) read aloud from the general counsel’s report she had approved: “While this office would generally recommend a reason to believe finding against Mr. Glicken and conduct an investigation into the two DSCC contributions, because of the discovery complications and time constraints, this office does not now recommend proceeding against this individual or the DSCC.”

The report, though, got more specific, citing Glicken’s “high profile as a prominent Democratic fundraiser” and “potential fundraising involvement in support of Mr. Gore’s expected presidential campaign” as reasons not to pursue an investigation. His prominence, according to FEC lawyers, made it “unclear that this individual would agree to settle this matter short of litigation.”

The reports on two complaints surrounding the travel expenditures of political candidates serving simultaneously as elected officials — then–vice president George H. W. Bush in 1988, and the Clinton-Gore duo in 1996 — are revealing.

A 1988 complaint filed by four Democratic state-party chairmen alleged that then–vice president George H. W. Bush’s presidential campaign had improperly shifted travel expenses related to the campaign from the Bush for President Committee to the Republican National Committee and a number of Republican state-party committees. The Bush campaign responded that the RNC and state parties had covered some of the expenses because the vice president had, during his travels, participated in party-building events.

The general counsel’s report argued that a dozen Republican state-party chairmen and the Republican National Committee had violated federal campaign-finance laws and urged the commission to approve subpoenas for the state-party chairmen and the RNC treasurer. A later report recommended that the FEC file suit to enforce the subpoenas. After seven years, however, the FEC in 1996 — at the discretion of the commissioners, to whom Lerner reported — dropped the matter, citing the need to “prioritize” and “move on.” Bush and company received a letter that amounted to a slap on the wrist.

The FEC gave President Bill Clinton and vice president Al Gore less trouble when similar allegations arose.

A nonprofit group in 1996 accused the Clinton-Gore duo of using Air Force One for campaign trips and then failing to reimburse the government, thereby receiving the value of the travel as a political contribution. (The use of government property for political purposes is prohibited.) The general counsel’s report concluded there was “no reason to believe” violations had occurred.

FEC lawyers reached the same conclusion about a complaint lodged by the RNC regarding a campaign trip Clinton took through several states by train that cost approximately $1,000,000.

Neither the cases nor the alleged wrongdoings are exactly parallel, but they are illustrative of Lerner’s tendency toward the rigorous investigation of allegations against Republicans while giving Democrats the benefit of the doubt. Even after years-long investigations against conservatives — as with the Bush campaign and Barbour — the commissioners either could not agree that any wrongdoing had occurred, or found themselves hamstrung because Lerner’s investigations had dragged on so long.

Mark Hemingway at The Weekly Standard has documented what he calls Lerner’s “politically motivated harassment” of the Christian Coalition. At her direction, the FEC in 1994 sued the group in the largest enforcement action in history, accusing it of “expressly advocating” the election of Republican candidates. In a deposition, FEC lawyers asked Lieutenant Colonel Oliver North whether and why the former Southern Baptist minister Pat Robertson was praying for him and why he thanked Robertson in a letter for his “kind regards.” Five years later, in 1999, the group was cleared of any wrongdoing. 

Before invoking her right to remain silent on Wednesday, Lerner struck a defiant tone before the House Oversight committee, insisting that she had “not done anything wrong” and remains “very proud” of her work in government. We do not yet know the extent of her knowledge or involvement in the IRS’s targeting of tea-party, conservative, and pro-life groups, but her record at the FEC suggests the bias revealed this month may not be unique, only more blatant.

— Eliana Johnson is media editor of National Review Online.