Editor's Note: As expected, last January's Citizens United ruling by five Republican justices on the U.S. Supreme Court has opened the floodgates to special interest money inundating the November elections.
However, there are still laws that pertain to the new political groups being created to exploit this money-in-politics opening and those laws are being widely flouted, says election activist Kevin Zeese in this guest essay:
In this first post-Citizens United election, voters are the victims of a crime against democracy that the government seems unable, or unwilling, to stop despite it occurring right before our eyes.
Organizations are being set up under Section 501(c)(4) of the Internal Revenue Code to manipulate the outcome of the mid-term elections. A 501(c)(4) is a lobbying organization that is not allowed to spend most of its time on electioneering.
Yet, these new organizations are spending massively on advertising for and against candidates, developing data bases of voters, creating messages for candidates and planning get-out-the-vote drives. These activities make them "political committees" that should obey election laws, including making the names of donors public.
Thus, political operatives, such as Karl Rove, are misusing the tax laws by creating organizations, like American Crossroads, that use anonymous and unlimited donations from corporations and the super-rich to overwhelm the political process with attack ads against disfavored candidates.
As the New York Times reports, "Crossroads Grassroots Policy Strategies would certainly seem to the casual observer to be a political organization: Karl Rove, a political adviser to President George W. Bush, helped raise money for it; the group is run by a cadre of experienced political hands; it has spent millions of dollars on television commercials attacking Democrats in key Senate races across the country."
The central legal issue is whether groups like Rove's American Crossroads are "political committees" under federal election laws. Federal law defines a political committee as any group that receives and spends more than $1,000 "for the purpose of influencing any election for Federal office." [See 2 U.S.C. 431(4), (8)(A) and (9)(A).]
In Buckley v. Valeo the Supreme Court defined the term "political committee" to encompass organizations that are either "under the control of a candidate or the major purpose of which is the nomination or election of a candidate." [Emphasis added.]
American Crossroads and similar organizations were set up to influence the outcome of the mid-term elections and take advantage of the Supreme Court's Citizens United decision last January that opened the door to unlimited donations.
But these groups meet the two-part test
for being a "political committee": (1) its "major purpose" is to
influence candidate elections and (2) it receives and spends more than
$1,000 for the purpose of influencing federal elections.
The New York Times describes the legal test for 501(c)(4)s or "the rule of thumb" as "more than 50 percent of a 501(c)(4)'s activities cannot be political."
"But," the Times reported, "that has not stopped Crossroads and a raft of other nonprofit advocacy groups like it -- mostly on the Republican side, so far -- from becoming some of the biggest players in this year's midterm elections, in part because of the anonymity they afford donors, prompting outcries from campaign finance watchdogs."
In the Citizens United decision, while striking down restrictions on spending by groups, such as corporations, seeking to influence elections, the Supreme Court upheld election law provisions that required disclosure of the source of electoral-related funding.
Justice Antonin Scalia, writing for the majority, described the benefits of such disclosure to shareholders of the corporation as well as to voters writing:
"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.