Blog — Supreme Court
Last week provided yet another reason not to believe much of what Koch brothers-associated dark money groups say.
Starting last fall, Americans for Prosperity (AFP) began spending tens of millions of dollars running supposed “issue advertisements” in markets home to contested Senate and House races that attacked “Obamacare” and Democrats who supported the Affordable Care Act.
One famously had an actress assert “health care isn’t about politics, it’s about people,” and urged viewers to call Sen. Kay Hagan (D-NC) and “tell her to stop thinking about politics and start thinking about people.” In another, AFP said Sen. Mary Landrieu (D-LA) “lied” to Louisianans about the law, and urged viewers to call her and tell her “it’s about people, not politics.” AFP even launched a hashtag, #PeopleNotPolitics.
The ironic and unsurprising truth — the ads were entirely about politics (not people) — was revealed last week when a recording of sessions at the Koch brothers’ June 2014 “summit” for donors surfaced. In a session on the political landscape, AFP President Tim Phillips and Freedom Partners Chamber of Commerce President Marc Short described to donors what was happening in various Senate races, and how the efforts of Koch brothers-associated groups had been “impactful.”
Mr. Short first boasted the ads were responsible for hurting Sen. Hagan’s chances for reelection. “When we began the effort to remind North Carolina voters about her record, about her support for Obamacare, her disapproval rating was relatively low. It was 34 percent,” Mr. Short told the donors. But “after several months of ads that you helped to fund to remind citizens about her record in support of big spending and support of Obamacare” — the ads AFP swore were not political — “her disapproval rating climbed from 34 percent to where it stands today at 54 percent,” Mr. Short said. “Now, that’s not a good place for her to be running for reelection as an incumbent.”
Mr. Short similarly claimed the ads hurt Sen. Landrieu politically. While Sen. Landrieu “has a relatively strong approval rating,” AFP’s purported issue ads focusing on her vote for Obamacare and statement that she would vote for it again drove her approval rating “from 54 percent to 39 percent where it stands now.” As with Sen. Hagan, “that’s not a good place to be for a two-term incumbent running for reelection,” Mr. Short concluded.
This is far from the first time CREW has caught Koch brothers-associated groups lying. The Center to Protect Patient Rights, for example, falsely told the IRS it did not engage in any political activity in the 2010 elections, the 60 Plus Association failed to disclose more than $11 million it spent on political activity in 2010 and 2012, and Freedom Partners falsely claimed most of its income comes from membership dues instead of contributions so that it can avoid disclosing the names of its donors to the IRS.
Unfortunately, the same five Supreme Court justices who voted for Citizens United and McCutcheon also have made it so that little can be done about AFP’s sham issue ads. In a 2007 decision, those justices concluded the intent of the person or group broadcasting an ad is irrelevant in determining if it is an independent expenditure that must be disclosed to the FEC or an unregulated issue ad. Only if the content of the ad, viewed objectively, is susceptible to no reasonable interpretation other than an appeal to vote for or against a candidate can it be regulated. As a result, Mr. Short’s admission the ads were political doesn’t mean they had to be reported.
This situation underscores how five Supreme Court justices, three Republican FEC commissioners, and a weak IRS repeatedly are defying common sense to create the loopholes that allow dark money to flow into our elections. For example, the Republican commissioners think advertisements mentioning candidates broadcast so close to an election that they must disclosed to the FEC as “electioneering communications” should not be counted as political. Even when, as here, a group admits its sham issue ads were intended to influence elections, those ads also can’t be treated as political. The tax code plainly says section 501(c)(4) organizations must be “exclusively” engaged in non-political activity, but the IRS interprets “exclusively” to mean “primarily.”
Koch brothers-associated groups have a bad habit of saying things about their political involvement that don’t turn out to be true. Courts and federal agencies tasked with regulating campaigns are helping them get away with it.
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