John Pomerantz has written this post to the Election Law Listserv, which I am reprinting with permission:

The facts so far don’t seem to support the allegations by Judicial Watch that the IRS disclosed confidential information about American Future Fund, American Issues Project, and AIP’s predecessor organizations.

Here’s what I found and provided to Paul Streckfus for his Exempt Organizations Tax Journal:

The documents Judicial Watch received in response to its FOIA request and released [at http://www.judicialwatch.org/document-archive/fec-documents-emails-between-lois-lerner-and-fec/] indicate that:

In July of 2008, Lois Lerner (then head of IRS Exempt Organizations and formerly of the FEC) told an unnamed FEC enforcement attorney that American Futures Fund hadn’t been recognized as a 501(c)(4) by the IRS and that she couldn’t disclose information about pending applications. It also appears that she explained the EO application process to the FEC attorney.

In February of 2009, the FEC enforcement attorney again contacted Lois regarding both American Futures Fund and the organization American Issue Project (formerly Citizens for the Republic),

In March of 2009, someone on Lois’ staff sent the FEC attorney application documents for both organizations and the 2007 990 for AIP.

According to the Judicial Watch FOIA documents, Citizens for the Republic was granted IRS recognition of the organization’s 501(c)(4) status in November 2007 (a month after submitting its application). Based on the documents that I found on the Pro Publica website [at http://www.propublica.org/documents/item/326775-1024-american-future-fund-part-1], it appears that American Future Fund was recognized by the IRS as a 501(c)(4) on October 24, 2008 (7 months and several rounds of additional questions after it applied).

Thus, it appears that in sharing application materials and information returns for the two organizations in March of 2009, Lois was disclosing documents that she was allowed to disclose.

(There is one potential issue: It is not clear if the redactions to Schedule B of the 2007 AIP Form 990 were done when the IRS provided the information to the FEC or whether they were done later. As shown the redactions are done properly, but it would have been an improper disclosure for the IRS to provide the unredacted Schedule B outside the agency. I assume that if Judicial Watch had any reason to think that Lois had provided an unredacted Schedule B to the FEC, we would have heard about it.)

I think there’s a legitimate question to be asked about whether the FEC attorney got a more helpful (as in timely or fulsome) response than someone else might have and, if so, what the motivation for that might have been. I’ll note that many of us whose work involves the IRS rely on personal connections in the agency to more quickly get information or resolve issues than would be possible through normal channels. Indeed, IRS officials have spoken at ABA meetings, urging practitioners to elevate issues when we encounter problems getting matters resolved by front-line staff.

I think that those inclined to believe that the recent IRS scandal was the result of IRS or administration bias against conservative groups are likely to believe that Lois expedited the process of getting this information to the FEC out of animus to these conservative groups. Those of us who tend to favor a less partisan explanation for recent IRS failings are apt to see what Lois and her staff did for the FEC as typical of the type of informal assistance that goes on all the time.

P.S.  The link to the original Daily Caller piece didn’t work for me.  Here’s a working one:  http://dailycaller.com/2013/10/31/report-irs-provided-conservative-groups-confidential-tax-information-to-fec/