The Obama campaign has asked the Federal Election Commission to reclassify Crossroads GPS, a 501(c)4 organization founded by Karl Rove as a political action committee. In a letter sent on Tuesday, Obama for America lawyer Robert Bauer argues that Crossroads GPS has the election or defeat of federal candidates as a “major purpose” and it should therefore be treated as a political action committee under the tax code. If the FEC were to agree Crossroads GPS would have to disclose its donors.
Unfortunately, according to Rick Hasen, an election law expert at UC Irvine and editor of the Election Law Blog, the FEC is not going to rule on this before the election. “The FEC moves very slowly in the best of circumstances and we’re not in the best of circumstances,” says Hasen. “It takes years to investigate and adjudicate. It’s not designed to act in real time.” That means Crossroads GPS and other 501(c)4s could get away with running blatant electioneering ads and just face a penalty, usually a fine although criminal penalties are possible, after affecting the outcome of the election.
It may take years to resolve the issue because the FEC has an even partisan divide. If its ruling is deadlocked the complaint will probably end up in federal court. Last week the federal Fourth Circuit Court of Appeals upheld the FEC’s “major purpose” test. In Real Truth About Obama v. FEC, the Fourth Circuit upheld a lower-court ruling that the group, a Democratic-leaning organization that registered under section 527 of the tax code, was a political committee because it had helping Obama win (in 2008) as a major purpose. Hasen speculated at the time that under the standard in this case, Democrats or election reform groups would file complaints against Crossroads GPS.
There are plenty of good reasons to argue that Crossroads GPS is primarily about winning the White House and Senate for Republicans, not just enhancing social welfare or advocating public policy positions, as it claims to be. It makes television commercials that are filled with dishonest propaganda attacking Obama or Democratic Senate candidates. “I thought even before Real Truth About Obama that Crossroads GPS was acting like a political committee and should be classified by the FEC as a political committee,” says Hasen. “I think that argument is only strengthened.”
But Republicans argue that Crossroads GPS has not violated its status, noting that plenty of groups with a policy advocacy mission, on both the right and the left, engage in communications that could affect an election. “Crossroads GPS keeps within their policy agenda boundaries,” says Jon Henke, a Republican consultant. “In 2010, they had what they called the ‘7 in &rssquo;11’ plan. Now they have the ‘New Majority Agenda.’ The info is on their website, including bills they support and oppose. It's a lot more detailed than most 501(c)(4) organizations' policy agendas. And yes, it is aimed at policymakers who are up for election, when the public is paying the most attention to issue advocacy.”
The Democratic side has a set-up similar to American Crossroads and Crossroads GPS. The Super PAC supporting President Obama, Priorities USA Action, is affiliated with a 501(c)4 organization called Priorities USA. Henke argues that any ruling that Crossroads GPS is a political action committee would have to fall equally on Priorities USA. But Priorities USA has not yet run ads to anywhere near the extent that Crossroads GPS has, so it does not have the same track record to judge. Until it runs ads that could be fairly perceived as having a candidate’s election or defeat as a major purpose, it cannot be judged to have violated the law. Ultimately, though, if it runs similar ads and a ruling comes down after the fact finding Crossroads GPS in violation, this judgment could fall on a number of other groups, including Priorities USA.
Since Crossroads GPS won’t be ruled on until after the election, the Obama campaign is presumably just hoping to gain some political messaging advantage by raising awareness of the role of large undisclosed contributions in their opponents’ efforts. That may pump up the base a little, but is unlikely to have any effect on swing voters. “While I bet you could get polls to show that people dislike money in politics, I am very skeptical that votes actually change based on that,” says Henke. “ Lots of people who were already going to vote for Obama will say that is the most important thing to them, but how many likely Romney voters will vote for Obama because Crossroads GPS won't disclose its donors? Ballpark guess: 0, give or take a few.”
You can watch the commercials Crossroads GPS released in three states last week and determine for yourself whether it seems like they have an electoral outcome as a major purpose:
Correction: This article originally stated that Crossroads GPS has donated to American Crossroads, its affiliated Super PAC. I regret the error.