[EL] Crossroads Issue Ad

[John Pomeranz]

Speaking to Steve's tax point:  The IRS takes the position that the
scope of what constitutes electioneering (or, more correctly, "exempt
function expenditures" under IRC 527(e)) is significantly broader than
the election law concept of "express advocacy."  Under the the IRS
"facts and circumstances" analysis, I think it likely that this ad would
be an exempt function expenditure by Crossroads GPS and would not count
towards meeting the 501(c)(4) organization's primary social welfare
purpose.  (But I'm not the organization's lawyer.)
 
John Pomeranz 
Harmon, Curran, Spielberg & Eisenberg, LLP 
1726 M Street, NW, Suite 600 
Washington, DC  20036 
p: 202.328.3500 
f: 202.328.6918 
e: jpomeranz at harmoncurran.com 


________________________________

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Steve Gold
Sent: Tuesday, November 29, 2011 10:48 AM
To: law-election at department-lists.uci.edu
Subject: [EL] Crossroads Issue Ad


A few weeks back, Crossroads GPS (the 501(c)(4) portion of the
Crossroads family) began running a high profile ad
<http://www.youtube.com/watch?feature=player_embedded&v=tNxez4ddpa0>
against Elizabeth Warren's campaign for Senate.  The ad is formulated
like an issue ad, talking about the Occupy movement and Warren's take on
it, criticizing her for not focusing on creating jobs.  There are no
words of express advocacy in the ad, and at the conclusion of the ad a
phone number appears on the screen, presumably for the viewer to contact
Warren and tell her to focus on jobs.

My question is whether this is an issue ad or the functional equivalent
of express advocacy, and whether such an issue ad against a challenger
is novel.  Obviously, Crossroads isn't concerned that Warren hasn't been
focusing on job creation while teaching her 1L contracts class.  Her
comments about the Occupy movement were taken from an interview about
her campaign, and the phone number that appears on the screen connects
to her campaign headquarters.  It's hard to imagine what the viewer is
supposed to do to get Warren to create jobs other than not vote for her.

It isn't a violation for American Crossroads to run such an ad, but I
wonder if this was intentional.  Does Crossroads think that this ad buy
will count as an expenditure for their primary purpose of social welfare
advocacy, or is it express advocacy consciously dressed up as an issue
ad because it's likely to be more effective that way?  Is this something
we should expect to see more of from non-profits?  Why not simply come
out and say, don't vote for Warren?

--
Steven Gold
General Counsel
ActBlue
steve at actblue.com
617.517.7636
www.actblue.com

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