On February 16, 2016, CREW filed a lawsuit against the Federal Election Commission for improperly dismissing CREW’s 2012 FEC complaint against Crossroads GPS, Karl Rove, Haley Barbour, Steven Law and Caleb Crosby.
In November 2012, CREW filed a complaint with the FEC alleging that Crossroads GPS and its agents violated FECA by failing to disclose the names of donors who funded the group’s campaign ads. That includes Crossroads GPS’s failure to disclose a contributor who–as Karl Rove admitted under oath–gave Crossroads GPS more than $3 million to aid the group’s work to elect Josh Mandel, a candidate in the Ohio Senate race. Crossroads GPS indisputably used that money, and other money it raised from a matching challenge and at a Tampa fundraiser, to fund independent expenditures in the Ohio race and in other various Senate races. The independent expenditures included ads asking viewers to vote for or vote against a targeted candidate. However, although these were political ads, Crossroads GPS did not disclose a single contributor.
On March 7, 2014, the FEC’s Office of General Counsel issued its First General Counsel’s Report on CREW’s complaint, which conceded that Crossroads GPS did not fulfill FECA’s disclosure requirements for independent expenditures. Nonetheless, it found that the agency was bound by an old FEC regulation–regulation 11 C.F.R. § 109.10(e)(1)(vi), which was adopted without any explanation long before the days of dark money–that narrowed the disclosure required such that it becomes legal to hide certain political spending. The FEC General Counsel also recognized that another subsection of the FECA required “additional” reporting, which Crossroads GPS also did not comply with, but nonetheless recommended excusing Crossroads GPS from compliance.
On November 17, 2015, the FEC deadlocked three-to-three on whether to find reason to believe that Crossroads GPS violated FECA, and deadlocked on whether to close the file on Mr. Law, Mr. Rove, Mr. Barbour, and Mr. Crosby, leading the Commission to dismiss CREW’s complaint. CREW therefore files this lawsuit as a challenge to that dismissal.
On August 3, 2018, the court ruled that the law unambiguously commands full disclosure of those making contributions to groups that fund independent expenditures—ads that explicitly endorse or oppose a candidate for office. On August 24, 2018, Crossroads GPS appealed the decision and filed a motion for stay to halt any further legal proceedings in the trial. After both the district court and court of appeals denied CGPS’s motion, they filed an emergency motion for stay to Chief Justice Roberts. Justice Roberts granted CGPS temporary stay on September 15, 2018.
On September 18, 2018: the Supreme Court denied CGPS’s emergency motion for stay, and lifted the temporary stay granted by Chief Justice Roberts. Because of the decision, effective immediately, anyone making more than $250 in express advocacy ads — ads that tell viewers who to vote for or against — must now disclose the identities of all contributors who gave more than $200 in a year. They must also identify who among those contributors earmarked their contributions for express ads. As a result, the contributors for a major category of dark money spending this fall will have to be disclosed to the public. CREW has moved to dismiss Crossroads’s appeal for lack of jurisdiction.