One big question raised by IRS political targeting is whether Obama officials or their bureaucratic allies unleashed the power of the administrative state for partisan ends. Now evidence is emerging that officials at another agency, the Federal Election Commission, used their enforcement power as an anti-conservative sword.
The House Ways and Means Committee this week released emails showing that, in 2008 and 2009, the FEC’s general counsel staff sought tax information about conservative political groups from Lois Lerner of the IRS. Ms. Lerner is the IRS official who took the Fifth before Congress rather than tell her side of the story. She had previously worked at . . . the FEC’s general counsel office.
Such a request is a no-no in many ways. The FEC staff was investigating these groups without the approval of its commissioners in clear violation of FEC rules. And the IRS is legally barred from releasing confidential tax information—including to the FEC. The emails show that Ms. Lerner asked her staff to provide information to the FEC, and Ways and Means is seeking more documents.
The suspicion of political motivation is compounded by disclosures this week by Don McGahn, one of three Republican FEC commissioners. He released documents that show a litany of FEC staff abuses—including unauthorized investigations, unsanctioned work with law enforcement, and cases when documents were kept from commissioners. These abuses were largely aimed at investigating conservative political groups.
One case involved the FEC handling of an accusation made in March 2012 by a Democratic operative against Rick Santorum’s presidential campaign. Mr. McGahn reports that while the complaint was “scant at best,” the FEC staff went to extraordinary lengths to find a violation.
The FEC staff is barred by law from conducting investigations without the approval of its commissioners, who are appointed by the President and confirmed by the Senate. This is to ensure political accountability. Yet the general counsel’s office “performed extensive research during an extra-statutory investigation that produced various news articles and materials that claimed violations had occurred,” says Mr. McGahn.
The FEC’s sources included the likes of the liberal Talking Points Memo Muckraker website, which FEC staff sent to the Santorum campaign for a response. The FEC commissioners recently closed the case without taking any action because there was no compelling evidence.
Our Kimberley Strassel reported Friday on a case in which the FEC staff contacted Ms. Lerner as part of its unauthorized inspection of another conservative group, the American Issues Project. Along the way, the staff created a novel, after-the-fact legal theory as a rationale for bringing charges against the group.
That legal theory would judge conservative groups on the basis of their “calendar-year” spending—as opposed to their spending over an entire election cycle, which is the standard that the FEC has used to judge liberal groups. The FEC enforcers happened to dream this up about the time Democrats in Congress and the Obama campaign had begun a public campaign against conservative 501(c)(4) groups that were joining the presidential debate.
Mr. McGahn also released a memo about his efforts to rein in abuses by getting the FEC to adopt a new manual governing staff enforcement conduct. The memo adds to the list of wild behavior—detailing how staff conducts ad-hoc investigations, sits on exculpatory evidence, and discloses sensitive information to the Department of Justice without commissioner approval. Staff even maintained a policy—undisclosed to commissioners—that granted itself at-will authority to interact with Justice.
Far from expressing contrition, the FEC staff has assailed Mr. McGahn’s reforms. General Counsel Tony Herman wrote in a memo in June that sensitive FEC decisions were best left in the hands of “non-partisan, career leadership.” That nonpartisan riff is a hoot. The White House allies at the Center for American Progress Action Fund have targeted Mr. McGahn for criticism, further highlighting the cynicism of “nonpartisan.”
Mr. McGahn has the law on his side. The FEC was created as a bipartisan watchdog in the 1970s, and the law governing its investigations and dealing with other agencies was designed to keep it above partisanship. The staff’s flaunting of these strictures suggests that FEC bureaucrats are engaged in the sort of partisan targeting that has sullied the IRS.
Congress is seeking all email communication between FEC staff and Ms. Lerner, and rightly so. Liberals like to expand the government in the name of holding others accountable, but then they never want to hold the government accountable for breaking its own rules, or even the law. We doubt the American people agree.
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This op-ed article was published by The Wall Street Journal.