But under federal law, the FEC cannot open an investigation until at least four commissioners have voted that there is “reason to believe that a person has committed” a violation of campaign-finance law — and no such vote had yet taken place. Hans von Spakovsky, an NRO contributor who served as an FEC commissioner from 2006 to 2008, tells me that if the FEC attorney contacted the IRS before the commissioners voted on whether to open an investigation, “that attorney violated federal law.” “The law is crystal clear — no investigation of any kind until the commission votes to open an investigation,” he says.
McGahn views the American Future Fund’s case as but one example of a systemic problem within the FEC. Attorneys in the agency’s general counsel’s office, he says, are less than candid about how they obtain information. With regard to the American Future Fund, they told FEC commissioners in September 2008, “The IRS has not yet issued a determination letter regarding AFF’s application for exempt status. Based on the information from the response and the IRS website, it is likely that the application is still under review.” The e-mail exchange between Lerner and the FEC attorney indicates, however, that FEC attorneys got that information not from the IRS website but from Lerner herself. Furthermore, by February 2009, when the commissioners voted on whether to prosecute the American Future Fund for violating campaign-finance laws, the group had received its tax-exempt status, but agency attorneys — despite reaching out to Lerner weeks before the vote — did not update their report.
FEC attorneys “don’t always brief the commission on the information that they have,” McGahn says; he describes this as “a longstanding frustration” in his five-year tenure as a commissioner. The behavior of career employees with regard to the American Future Fund, he says, reflects “a much larger culture of not telling the whole story when presenting a case to the commission,” with the result being that commissioners at times vote to investigate groups without having the facts presented clearly before them.
He points, by way of example, to the case of Republican congressman Vern Buchanan, whose 2006 campaign was the subject of an FEC complaint. According to McGahn, agency attorneys had “obtained exculpatory information but kept the investigation going for a couple of years,” shielding it from both Buchanan’s attorneys and the commissioners themselves. Buchanan’s attorney, William McGinley, told the commission in December 2010, two years after the initial complaint was filed, “All of the exculpatory information disclosed by the office of general counsel in the last 48 hours has been requested by us multiple times during this matter. This is now the second time in as many days that we have received previously undisclosed exculpatory evidence.” FEC commissioner Caroline Hunter acknowledged as much in a hearing, telling the parties, “The issue about the exculpatory evidence is obviously troubling, and I apologize for having to deal with this at the last minute like this.”
At the FEC, McGahn sees a system of discrimination more highly evolved than that employed by IRS officials. “Making a list of everybody who uses the word tea-party and giving them extra scrutiny, that’s rather amateur,” he explains. “The more sophisticated way is to look up all the complaints that come in” and, for those involving Republican and conservative organizations, “do an extra-statutory search to develop the facts and then decide on what the legal theory is.” It comes down to “the rule of law versus case by case, ad hoc decision making,” where federal bureaucrats are seeking to “decide who broke the rule of law after the fact.”
National Review Online has also drawn attention to Lerner’s own controversial tenure at the FEC, where she served as head of the enforcement office from 1986 to 2001. During that time, she launched a five-year investigation of the Christian Coalition after which the group was cleared of any wrongdoing. In a 1998 case, she recommended against the investigation of a donor, citing his “high profile as a prominent Democratic fundraiser” and “potential fundraising involvement in support of Mr. Gore’s expected presidential campaign.”
House Oversight Committee chairman Darrell Issa has now requested all documents potentially related to the “inappropriate coordination” between the FEC and the IRS between January 1, 2008, and the present. If McGahn and his fellow critics are correct, the scandal currently engulfing the IRS will extend deep into the bowels of another federal agency.
— Eliana Johnson is NRO’s media editor.