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Justice

How Real Disclosure Laws Could Help Fix The IRS Problem

The Internal Revenue Service is under fire from both parties for improperly targeting certain groups for additional scrutiny because their names included keywords such as “Tea Party” and “patriot.” But the challenge of addressing the skyrocketing numbers of “social welfare” groups registering for tax exempt status could be lessened by fixing the broken disclosure laws for political advertisers.

Since the Supreme Court’s controversial 5 to 4 ruling in the Citizens United v. FEC case in 2010, the IRS has seen a more than 100 percent increase in the number of groups applying for 501(c)(4) status — the section of the federal tax code that governs non-profit groups dedicated to social welfare — from 1,500 in 2010 to 3,400 in 2012.

Not all 501(c)(4) engage in political activity of any kind — the United States Chess Federation, for example, is a fairly apolitical group. Political 501(c)(4) groups are required to adhere to certain rules, including that they not be “primarily engaged” in electioneering activity. In a failed attempt to sort out which groups were apolitical and which needed additional scrutiny, the IRS reportedly tried a variety of ineffective screening methods, including flagging “patriot” groups as well as groups that focused on making “America a better place to live.”

As long as it is not their primary purpose, Citizens United allows (c)(4) groups to spend unlimited funds on “independent expenditure” ads aimed at swaying voters and the deadlocked Federal Election Commission allows these groups to avoid any disclosure of who bankrolls these advertisements. And since the 2002 law governing political advertisements came before the ruling, it does not adequately address the specific issue of disclosure for independent expenditure ads.

Because of this loophole, groups seeking to influence elections through campaign ads groups and to avoid having to make their donors public have often registered as (c)(4)s, rather than as super PACs (tax-exempt groups which can also raise and spend unlimited amounts on “independent expenditures,” but must make public all large donors). After bankrolling super PACs in the 2012 elections, mega-donors including millionaire investor Foster Friess and billionaire casino mogul Sheldon Adelson have vowed to keep future political spending secret, by giving to opaque 501(c)(4) committees instead. And good government groups have demanded the IRS investigate whether (c)(4)s like Crossroads GPS, the Commission on Growth, Hope and Opportunity, and the American Future Fund are really just super PACs in disguise.

The guidelines for what is and is not an acceptable level of political activity for a (c)(4) has never been clear — a vague “primary purpose” test — and has been little enforced. With limited staff and resources, even before massive furloughs forced by the sequester, the IRS has proved ill-equipped to monitor which (c)(4)s are really (c)(4)s and which ones are pretenders.

Congressional Republicans have thus far blocked efforts to require disclosure of political ad spending by (c)(4) groups. The proposed DISCLOSE Act and the Follow the Money Act would help bring parity to the disclosure rules goverrning independent campaign ads, without impeding on the legitimate activity of (c)(4)s. But if groups like Crossroads GPS were required to disclose the major donors behind their $70 million-plus campaign ad spending, there would be little incentive for them to masquerade as social welfare groups.

If Congress simply treated all spending on independent campaign advertisements uniformly — allowing voters to know who was really speaking and to evaluate the speech accordingly — the IRS would not have to use these clearly imperfect tests to decide what is and isn’t a legitimate 501(c)(4).

Note: ThinkProgress is a project of the Center for American Progress Action Fund (CAPAF), which has been recognized by the IRS as a 501(c)(4) organization. CAPAF does not endorse candidates, nor does it fund “independent expenditures” or any other kind of candidate-related advertising.

Update

Senate Majority Leader Harry Reid (D-NV) told reporters Tuesday that the IRS is not the agency best equipped to oversee political groups. “DISCLOSE would have taken the IRS out of the business of investigating these groups.” He noted that “not a single Republican voted for” the measure in the Senate, asking “where was the outrage from the Republicans then?” House Democratic Leader Nancy Pelosi made similar arguments Monday. Senate Minority Leader Mitch McConnell (R-KY) told reporters Tuesday that he continues to oppose the DISCLOSE Act, inaccurately claiming it was “designed to give the IRS even more power, directly, to silence the critics of this administration.”

Justice

IRS Targeted Tea Party Tax-Exempt Groups For Increased Scrutiny And Missed The Real Problem

The Internal Revenue Service (IRS) acknowledged Friday that it had improperly flagged groups applying for tax-exempt status for additional scrutiny if they contained common Tea Party keywords in their names. Rather than addressing the real problem of political committees masquerading as 501(c)(4) groups to evade public disclosure laws, this approach instead delayed the process for several groups purely on the basis of their names.

Lois Lerner, head of the IRS unit that oversees tax-exempt groups, noted that the number of 501(c)(4) group applications doubled between 2010 and 2012. As a result of this influx, she explained, low-level workers at the agency’s Cincinnati office had flagged about 300 applications for additional review based on a keyword search. None had their status revoked or denied and the IRS apologized for the mistake.

While it unclear whether the IRS workers intentionally targeted conservative groups — an agency spokesman did not immediately respond to a ThinkProgress request for the complete list of keywords used — the office revealed that two of the terms on the list were “Tea Party” and “patriot.” As such, about 75 Tea Party groups were singled out for additional scrutiny.

The spike in 501(c)(4) groups comes after the Supreme Court’s 2010 Citizens United v. FEC decision that outside groups may make unlimited political expenditures. Since then, some 501(c)(4) organizations have begun abusing the system. Though groups engaged in some political activity may qualify as “social welfare groups” and receive tax-exempt status under this section of the tax code, electioneering cannot be their predominant activity.

Karl Rove’s Crossroads GPS, for example, told the IRS that any political ads run by the group would be “limited in amount” and “would not constitute the group’s primary purpose.” Campaign finance reform advocates have argued that, in light of more than $70 million in “independent expenditure” ad spending, the group’s primary purpose is clearly campaign activity. But rather than register with the Federal Election Commission as a political committee, Crossroads GPS continues to claim that it is not such a group and need not publicly identify its funders.

Justice

Republican National Committee Plan: More Money In Politics, More Influence For Rich People

The Republican National Committee’s investigation into its 2012 electoral defeat, dubbed their “Growth & Opportunity Project,” aims to provide a blueprint for how to “grow the Party and improve Republican campaigns.” Among their top proposals for how the GOP can win: dismantling the nation’s already weak campaign finance laws to allow rich people even more influence over politics and politicians.

Though the report’s minority outreach section notes that the GOP must show that it is “not just the party for those at the top of the economic ladder,” the campaign finance “reforms” embraced by its authors would give the wealthiest Americans even more say in the political system than they already have. And while the report tries to spin these changes in Orwellian terms like “restoring the free speech rights of the political parties and candidates,” it candidly admits that the proposed deregulation would “help the RNC return to its rightful position as the national Party leader” and aid in electing more Republicans.

Among the proposals are a repeal of McCain-Feingold “soft money” ban, an increase in how much each campaign may receive from rich donors, a repeal of the limits on how much rich individuals make in total contributions to candidates in each campaign, the elimination of the public financing system for the presidential campaigns and party conventions, and decimation of state and local campaign finance limits and laws, allowing rich individuals and corporations to exert as much influence on political decision-making as they can afford.

It encourages a nationwide assault of state and local laws by creating “model legislation” to “improve state campaign finance laws.” The report proposes coordinating with the corporate-backed ALEC, the group behind model bills to suppress voting and to encourage people like Trayvon Martin’s killer George Zimmerman to shoot first and ask questions later.

And if the states and local governments reject the corporate assault on their political system, the report suggests, the RNC should just turn to the GOP-controlled federal courts:

Where legislation cannot be adopted, litigation should be considered to lessen the burden on the parties’ ability to support their candidates. Where partisan obstruction or other obstacles stand in the way of common-sense improvements to a state’s campaign finance system, litigation may be necessary, particularly where there are constitutional concerns.

The report further argues the country should “increase contribution limits for federal campaigns,” because “in the age of SuperPACs and other such organizations, the contribution limits to federal candidates must be increased so candidates have more control of the message and voters have a better understanding of the viewpoints of candidates rather than of third-party groups.” But even the Supreme Court’s 5-4 Citizens United ruling noted that unlimited spending by outside groups was different from unlimited contributions to political candidates because “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” This plan would cut the middle-man and allow rich people to buy even more influence and access directly from candidates and elected officials.

Justice

Right-Wing Group Spent At Least $300,000 To Keep Scott Walker Ally on Wisconsin Supreme Court

Justice Pat Roggensack

The Club for Growth, a right-wing group that supports tax cuts for the rich, privatizing Social Security and writing Tea Party ideology into the Constitution, spent $300,000 to keep a key ally of anti-union Gov. Scott Walker (R-WI) on the Wisconsin Supreme Court — and that was just in the primary:

Now, another member of the court’s 4-3 right-wing majority, Justice Patience “Pat” Roggensack, is up for re-election. Roggensack is being aided by the same outside groups that aided Walker in advancing some of his most controversial proposals. The far-right independent expenditure group Wisconsin Club for Growth spent an eye-popping $300,000 on television ads supporting Roggensack during the primary. Club for Growth was responsible for more than 75% of the nearly $400,000 in TV spending in the primary race, and more than 80% of the total ad spots, according to TNS Media Intelligence/CMAG estimates released by the Brennan Center for Justice and Justice at Stake.

In addition, Roggensack is being handed big checks by some of the same wealthy donors that gave to Governor Walker in his recall campaign, such as Beloit billionaire Diane Hendricks and David Uihlein, Jr., as well as a variety of PACs and local Republican Party chapters.

Her opponent, Marquette Law Professor Edward Fallone, has been endorsed by a host of progressive organizations, but lags well behind in fundraising. If Fallone took the majority the court could do a virtual 180 on some of the state’s most contentious issues

It’s not surprising that the Club and other well-moneyed conservatives are willing to spend big to keep Roggensack on the court. Roggensack was part of the 4-3 majority that upheld a law pushed by Walker to undermine public sector unions. She also cast the key vote to reject an ethics rule that would have prevented justices from hearing cases involving their major campaign donors. Instead, Roggensack backed a rule written by corporate lobbyists.

The last time control of this court was at stake, conservatives also spent big to keep Walker’s allies in charge. In the week before conservative Justice David Prosser’s reelection, a report found just three groups spent nearly $1.4 million to keep Prosser on the bench. A group with close ties to the billionaire Koch brothers spent nearly $400,000.

Justice

Justiceline: March 14, 2013

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

  • At least 23 states have no mechanism for compensating those who spend years in jail after being wrongfully convicted of a crime. As Colorado considers a wrongful imprisonment bill, the New York Times explores the life of one inmate starting over after 18 years behind bars.
  • NPR has a fascinating story about a defense lawyer who was convicted after his client revealed that he manufactured evidence and put in false testimony in his case.
  • In the wake of revelations that a former chemist may have falsified Massachusetts crime lab results, hundreds of convicts and defendants have already been released, as prosecutors struggle to mitigate the damage.
  • Sen. Bernie Sanders (I-VT) introduced an amendment Tuesday to overturn Citizens United.

Justice

Supreme Court Turns Away ‘Citizens United On Steroids’ Case


In 2011, a Reagan-appointed federal judge handed down a “Citizens United on steroids” decision, declaring that corporations had the right to give unlimited amounts of money directly to political candidates — rather than simply to outside groups such as super PACs. The decision was eventually reversed by a unanimous panel of the United States Court of Appeals for the Fourth Circuit, and a petition to hear the case was pending before the Supreme Court. Earlier today, the Supreme Court denied that petition, putting the issue to bed for the time being.

The importance of this development should not be overstated. When the Supreme Court decides not to hear a case, that means only that there were not four justices interested in hearing that matter at that particular moment in time. It neither sets a new precedent nor is necessarily a window into how the justices would handle a future case that presents the same issue. Nevertheless, the Court’s decision not to hear this particular lawsuit is a hopeful sign that there is a cap on how far the five conservative justices currently want to push their crusade against campaign finance laws.

Last week, the justices announced that they would hear a similar case challenging the $123,200 cap on total contributions by wealthy individuals to candidates, political party committees and similar organizations during the current election cycle. It should be noted, however, that this case came up to the Court through an unusual process that prevents them from turning away cases they don’t want to hear. The Citizens United on steroids case, by contrast, came up through the normal process and thus would be turned away if less than four justices wanted to hear it.

Justice

Montana Bill Would Give Corporations The Right To Vote

Montana State Rep. Steve Lavin (R)

A bill introduced by Montana state Rep. Steve Lavin would give corporations the right to vote in municipal elections:

Provision for vote by corporate property owner. (1) Subject to subsection (2), if a firm, partnership, company, or corporation owns real property within the municipality, the president, vice president, secretary, or other designee of the entity is eligible to vote in a municipal election as provided in [section 1].

(2) The individual who is designated to vote by the entity is subject to the provisions of [section 1] and shall also provide to the election administrator documentation of the entity’s registration with the secretary of state under 35-1-217 and proof of the individual’s designation to vote on behalf of the entity.

The idea that “corporations are people, my friend” as Mitt Romney put it, is sadly common among conservative lawmakers. Most significantly of all, the five conservative justices voted in Citizens United v. FEC to permit corporations to spend unlimited money to influence elections. Actually giving corporations the right to vote, however, is quite a step beyond what even this Supreme Court has embraced.

The bill does contain some limits on these new corporate voting rights. Most significantly, corporations would not be entitled to vote in “school elections,” and the bill only applies to municipal elections. So state and federal elections would remain beyond the reach of the new corporate voters.

In fairness to Lavin’s fellow lawmakers, this bill was tabled shortly after it came before a legislative committee, so it is unlikely to become law. A phone call to Lavin was not returned as of this writing.

According to the Center for Media and Democracy, Lavin was a member of the American Legislative Exchange Council’s (ALEC) now defunct Public Safety and Elections Task Force. Last year, pressure from progressive groups forced ALEC to disband this task force, which, among other things, pushed voter suppression laws.

Justice

The Supreme Court Will Hear A Republican Party Lawsuit To Make Citizens United Even Worse

Billionaire casino mogul and major GOP donor Sheldon Adelson

The Supreme Court’s election-buying decision in Citizens United v. FEC enabled wealthy corporations to spend unlimited money to change the course of American elections, and a subsequent lower court decision gave the green light to super PACs funded by unlimited donations from millionaires, billionaires and corporations. Today, the Supreme Court announced it would hear another case — brought by none other than the Republican National Committee — that would go even further towards transforming American democracy into the Wild West.

Despite recent election-buying decisions permitting unlimited donations to super PACs and other groups that exist independently of campaigns and political parties, federal law still limits individual donations to candidates and to the parties themselves. In the next election cycle, these limits include a $2,600 cap on individual donations to a single candidate, and an overall limit of $123,200 in contributions to candidates, political party committees and similar organizations. The Republican Party’s lawsuit seeks to eliminate most of these limits on election-buying — most importantly, by removing the $123,200 cap on total contributions.

As the unanimous lower court decision upholding this cap explained, removing it would corrupt our election system even more by allowing billionaires to launder as much money as they want through political party committees to individual candidates:

Eliminating the aggregate limits means an individual might, for example, give half-a-million dollars in a single check to a joint fundraising committee comprising a party’s presidential candidate, the party’s national party committee, and most of the party’s state party committees. After the fundraiser, the committees are required to divvy the contributions to ensure that no committee receives more than its permitted share, but because party committees may transfer unlimited amounts of money to other party committees of the same party, the half-a-million-dollar contribution might nevertheless find its way to a single committee’s coffers. That committee, in turn, might use the money for coordinated expenditures, which have no “significant functional difference” from the party’s direct candidate contributions. The candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event will know precisely where to lay the wreath of gratitude.

Significantly, this opinion was written by Judge Janice Rogers Brown, who is one of the most conservative judges in the country. Brown previously authored an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect, and she once compared liberalism to “slavery” and Social Security to a “socialist revolution.”

As a lower court judge, however, Brown was also required to follow Supreme Court precedents. The five conservative justices who gave us Citizens United, by contrast, are not.

Justice

Meet The Shady Secret Money Group Helping The NRA Buy Up Judges And Attorneys General

As the nation engages in a long-overdue debate about gun violence, ThinkProgress has documented examples of how the NRA’s influence over Congress and public opinion may be exaggerated. The NRA may, however, exercise more influence in state elections, where candidates are less well known and political ads can have more impact. The NRA has funneled millions of dollars to a front group that spends its money electing judges and state attorneys general who are tough on crime—unless those crimes involve gun control laws.

The Law Enforcement Alliance of America (LEAA) was founded with NRA funding in 1991. The LEAA opposes common-sense measures such as background checks and keeping guns away from people on the federal government’s “Terrorist Watchlist.”

The LEAA adamantly refuses to disclose its donors, but the NRA’s tax documents reveal that it gave the group at least $2 million between 2004 and 2010. Previous reports say the NRA gave the group $500,000 annually from 1995 to 2004, which would total more than $6 million.

The LEAA, in turn, has spent big on state supreme court races, shelling out millions of dollars for attack ads that distorted the rulings of judges in criminal cases. One judge was accused of “voting for” a rapist and a “baby killer.” An African American judge in Michigan was described as “soft on crime for rappers, lawyers, and child pornographers.” The LEAA’s attack ads helped give Republicans a majority on high courts in Pennsylvania and Michigan.

Three judges on the Mississippi Supreme Court were elected with LEAA support, and the court recently ruled that a Wal-Mart store was not liable for a murder committed with bullets the store had knowingly and illegally sold to a “straw purchaser” who gave them to an underage friend. A few months after the ruling, the LEAA spent nearly half a million dollars to elect a judge to the Mississippi high court.

The attorneys general elected with help from LEAA have struck down limits on guns. Former Virginia Attorney General Jerry Kilgore, a Republican, moved to limit the reach of the “Uniform Machine Gun Act.” In 2011, Republican Attorney General Bill Schuette of Michigan granted gun owners in his state the right to use silencers if licensed by the ATF. Schuette’s office quoted an NRA spokesperson describing silencers as “useful safety devices.”

The NRA has also donated millions of dollars directly to state candidates. In 2009, 23 attorneys general publicly opposed renewal of the federal ban on assault weapons. Of the 21 elected attorneys general who signed the letter, 14 had received campaign cash from the NRA.

The LEAA is refusing to disclose its donors in a lawsuit stemming from the money laundering scandal connected to former Rep. Tom Delay (TX). Media reports have alleged that some of the LEAA’s attack ads were funded by the Chamber of Commerce. So in addition to pushing for more guns on the street, the LEAA could be doing the bidding of corporate interest groups—a far cry from its professed mission of representing the “average cop.”

Justice

Citizens United To Supreme Court: Landmark School Desegregation Case Was Wrong

Citizens United, the conservative group that successfully sued to enable wealthy corporations to buy elections, also has it in for same-sex couples. Yet an amicus brief they recently filed in the Supreme Court backing the unconstitutional Defense of Marriage Act would not simply deny marriage equality to gay people, it calls upon the Supreme Court to toss out a landmark decision ending public school segregation in the District of Columbia and declare that the federal government is free to discriminate against minorities and women:

Until May, 17, 1954, the day upon which this Court struck down “racially segregated public schools” in the States under the equal protection guarantee of the Fourteenth Amendment, it was generally understood that the due process guarantee of the Fifth Amendment did not have an equal protection component. As this Court observed in Adarand, “[t]hrough the 1940′s, this Court has routinely taken the view . . . that, ‘unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress. However, in Bolling v. Sharpe, this Court shoehorned equal protection into the due process text by sheer will, declaring “it would unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”

To the contrary, it was and is eminently “thinkable” that the Reconstruction Congress, led by abolitionist Republicans, would propose an amendment to the Constitution that would increase the powers of the federal government at the expense of the states.

To translate this a bit, the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws,” and thus this guarantee against discrimination explicitly applies only to state laws and not to the federal government. On the same day that the Supreme Court handed down Brown v. Board of Education, however, the Court also held in Bolling that a shield against public school segregation is one of the liberties protected by the Fifth Amendment, which does apply to the federal government. Thus, the District of Columbia, which is a federal entity, could not have segregated public schools.

Citizens United is now claiming that Bolling was wrong, and that the Constitution does absolutely nothing to prevent the United States from engaging in discrimination of any kind. If the justices buy their argument — as they were all too willing to do in the case that bears Citizens United’s name — it would mean that Congress is free to set up its own Jim Crow laws.

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