CT Blue

The IRS is grappling with a problem that only a lawyer, and a demented one at that, could take seriously:

Crossroads Grassroots Policy Strategies, the political ad-buying organization cofounded by Republican strategist Karl Rove in 2010, has officially submitted its first tax forms with the Internal Revenue Service, and as expected, the group is formally requesting that the IRS treat it as a nonprofit operating under section 501(c)(4) of the tax code.

…

The hitch is that the tax code says 501(c)(4) groups “must be operated exclusively to promote social welfare” — the promotion of which “does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”

Rove depends on Crossroad GPS getting that 501(c)(4) status for one reason. Avowedly political groups, like Crossroads GPS’ sister organization, the American Crossroads Super PAC, have to disclose their donors; 501(c)(4) groups don’t (although that could be changing).

In order to promise anonymity to donors giving tens of millions — sometimes $10 million at a time — Rove and his colleagues called Crossroads GPS a “policy and grassroots advocacy” organization.

…

The big question the IRS will have to address, therefore, is whether the ads that Crossroads GPS and similar groups call “issue advocacy” ads are, in fact, “on behalf or in opposition to any candidate for public office.”

…

That would include ads like one attacking Democratic Virginia Senate candidate Tim Kaine for being “Obama’s partisan cheerleader,” or one savaging Sen. Ben Nelson (D-Neb.), who at the time was running for reelection, for having “sold out to Obama,” or one attacking progressive Massachusetts Senate candidate Elizabeth Warren for, of all things, siding with big banks.

…

The Federal Election Commission’s hair-splitting rules allow Crossroads GPS to make the argument that these sorts of ads aren’t exactly the same as campaign ads. According to the FEC rules, in fact, advertisements from outside groups are only considered reportable as “independent expenditures” if they are “expressly advocating the election or defeat of a clearly identified candidate.” For the FEC, that involves literally using one of the magic words such as “elect” or “vote against” in their ad.

This brings to mind the famous observation by Justice Potter Stewart, a perceived conservative at the time, but retrospectively a flaming liberal, who wrote the following in a case in which he was called upon to distinguish hard core (and therefore illegal) pornography from-well, from the other kind of pornography:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Now we shall find out if the IRS knows “direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office” when it sees it. Its job is far easier than Stewart’s. In order to win, Rove must prove that his attack ads are not about political advocacy. That’s equivalent to Stewart having made the hapless defendant in the pornography case prove his movies were not about sex.