Salon’s Alex Seitz-Wald has identified a similar situation with a much bigger player:
Last week, Crossroads GPS, one of the conservative political nonprofits tied to Karl Rove, dropped $70,000 in ads attacking North Dakota Democratic Senate candidate Heidi Heitkamp, bringing their spending to approximately $140,000 in the race so far. Heitkamp’s opponent is Republican congressman Rick Berg. It would be totally illegal for Berg’s campaign to talk to Crossroads GPS and tell them, say, where he thinks it would be most helpful for them to buy ads. But that doesn’t mean the message can’t be conveyed through an intermediary.
Last month, Berg’s campaign finance filings to the FEC showed that his campaign paid the Black Rock Group, a small but powerful Republican strategic consulting firm in Virginia, thousands of dollars for “communications consulting.” Meanwhile, American Crossroads, the “twin” organization of Crossroads GPS (they have the same staff, same offices and the same mission, just different tax and legal structures), is paying thousands of dollars each month to the same firm for “advocacy [and] communications consulting.”
While a Black Rock spokeswoman told Salon that Black Rock too has had “firewalls in place” to ensure the firm can “legally engage in federal campaign and independent expenditure or issue advocacy campaigns,” Seitz-Wald notes that the firm has just three partners — making it hard to imagine that the Crossroads team and the Berg team are completely unaware of what the other is doing. But, due to weak Federal Election Commission regulation, even if they were, it would likely be completely legal.
Justice Anthony Kennedy’s 5-4 Citizens United majority opinion argued that “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” This loophole — and the overwhelming public opposition to the outside groups their ruling enabled — show just how wrong he was.