Note: In 2010 on behalf of the election law watchdog group Protect Our Elections, I filed one of the complaints considered by the FEC in the article below. You can see the complaint here and the press release here. We filed it along with Public Citizen and other organizations. We followed that complaint with a letter to the Department of Justice urging them to use their authority to criminally prosecute Karl Rove’s election organization American Crossroads. Here’s the press release.
We attempted to bring in the DOJ because we knew the FEC was designed to do nothing. They created a commission evenly split between Democrats and Republicans and since elections are partisan, the FEC always splits along partisans lines, 3-3 ties , and does nothing. The FEC needs serious reform if we are ever going to have decent regulation of elections. They have strong staff but intentionally divided leadership. It would be a big improvement if three commissioners were added to represent the independent voters in the United States who are not part of the corporate duopoly and should be represented.
The case against Rove’s organization was strong, as the general counsel for the FEC found, but since the FEC was designed not to act, we sought to energize the Department of Justice. As we said at the time, if the Department of Justice merely enforced existing federal election and tax law, particularly on reporting of donations for election-related activity, we could end the anonymous contributions that were beginning to plague electoral politics. Unfortunately, the DOJ did not act and the pollution of hundreds of millions of dollars in anonymous donations has become a major problem in US elections.
Where do we go from here? The DOJ could still act. The same problems raised in our complaint continue to exist. We are looking at litigation alternatives filed by public interest organizations, but it is too soon to say what is possible there. We will keep you informed. KZ
Crossroads GPS and an affiliated super PAC were some of the biggest forces in the 2012 election cycle. Crossroads GPS pulled in $208 million, according to tax filings. Its sister organization, the super PAC American Crossroads, raised $117 million.
Crossroads GPS spent $74.2 million to direct political activity, according to a statement by spokesman Jonathan Collegio in November. Using that figure, the tax-exempt group devoted 38.8 percent of its spending to campaign-related activity.
But the FEC counsel’s office calculated that the group’s political spending went beyond that, accounting for more than 50 percent of the total raised. That is significant because federal rules require that if an organization’s “primary purpose” is electing federal candidates, it must register with the FEC as a political action committee, not a nonprofit social welfare organization. Becoming a political committee requires that the organization report the identity of its donors, which is not required of social welfare organizations.
If Crossroads was required to file as a political committee, it would have to reveal its donor list, which includes some of the biggest givers on the right. One single donation received by the group in 2012 was for $22.5 million.
Many Republicans, including Crossroads GPS lawyer Tom Josefiak, a former general counsel to the Republican National Committee who served as FEC chairman in the 1980s, hailed the commission’s tie vote last month as a sign the case had no merit.
“I am not surprised that the Commission lacked the votes to find that Crossroads GPS is a political committee, because the law, court decisions, and Commission precedent are clear,” he said in a prepared statement. “Frankly, if the case had dealt with any other organization, and not GPS, the Commission would have unanimously dismissed the complaint a long time ago. Still, I’m pleased that the Commission decided that GPS is not a political committee, and now we can move on from this politically motivated complaint.”
Jan Baran, an election lawyer at Wiley Rein law firm, said that “FEC deadlocks and overruled staff recommendations are not new.” However, Trevor Potter, a reform advocate who represented the past campaigns of Arizona Republican Sen. John McCain and television satirist Stephen Colbert, said the FEC staff statement was unusually strong.
“The Office of General Counsel made some very strong arguments here,” Potter said by e-mail. “The Commission’s inability to proceed to investigate whether the donors . . . should have been required to be disclosed, as the Supreme Court assumed in Citizens United they would, is another example of the FEC’s failure.”
