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.”