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Crossroads GPS Can’t Claim That It’s Too Late for Sanctions in FEC Case, Public Citizen Tells Court

March 10, 2016

Note: The following sentence has been updated to correct an inaccuracy in the prior release in the sixth paragraph: In the brief filed today, Public Citizen explains that Crossroads GPS has not shown that the case is moot.

Crossroads GPS Can’t Claim That It’s Too Late for Sanctions in FEC Case, Public Citizen Tells Court

Arguments Are Latest in Public Citizen v. FEC Alleging Crossroads Should Register as a Political Action Committee

WASHINGTON, D.C. – Crossroads GPS cannot rely on its own procedural maneuvering to argue that it is now too late to take action against it for failing to register as a political committee in 2010, Public Citizen said in a brief filed late Wednesday in the U.S. District Court for the District of Columbia.

The brief is the latest step in Public Citizen v. FEC, a case brought by Public Citizen, Craig Holman, Kevin Zeese and ProtectOurElections.org against the Federal Election Commission (FEC) for failing to take enforcement action against Crossroads GPS based on a three-three deadlock vote among the commissioners. The legal work on the case is being done by the Campaign Legal Center and Public Citizen Litigation Group.

Despite spending tens of millions on the 2010 midterm elections, Crossroads GPS refused to register as a political committee with the FEC and as a result did not disclose its contributors to the FEC. Public Citizen and its fellow plaintiffs filed an administrative complaint with the FEC, and the FEC’s general counsel recommended that the agency find probable cause to proceed with an investigation. But the three Republican commissioners blocked action by voting not to find probable cause to move forward. Public Citizen and the other three plaintiffs then sued to have the FEC’s dismissal of its complaint declared unlawful.

The case was on hold for more than a year while Crossroads GPS sought to intervene and obtain nonpublic documents from the FEC. The delay resulted from the FEC’s resistance, while the plaintiffs sought to keep the case moving.

With the case back on track, Crossroads GPS in early February filed its brief supporting the FEC’s refusal to take action against it. In addition to repeating the FEC’s arguments, Crossroads GPS argues that the case is now moot because the statute of limitations for its failure to register has run out, so the FEC could take no action against it even if Public Citizen succeeds in showing the FEC’s failure to investigate was unlawful.

In the brief filed today, Public Citizen explains that Crossroads GPS has not shown that the case is moot. The statute of limitations Crossroads invokes would not bar the FEC from seeking an injunction requiring Crossroads GPS to register and make the required disclosures. Moreover, Crossroads GPS cannot rely on its own procedural maneuvering in the case to argue that the statute of limitations has now run out.

“This lawsuit gave Crossroads GPS notice of the charges against it well within the limitations period, and it can’t now claim that its own actions to slow down the lawsuit have run out the clock,” said Scott Nelson, attorney for Public Citizen.

Public Citizen’s brief also explains that in light of Crossroads’ extensive electoral spending in 2010, the three commissioners who blocked the FEC from taking action failed to come up with a lawful or reasonable explanation for not taking action against it, and the court should not defer to their views.

“The refusal of three FEC commissioners to enforce the law not only undermined transparency in our elections, but Crossroads GPS treated it as a green light to continue breaking the law,” said Tara Malloy, Campaign Legal Center deputy executive director. “Even after the complaint was filed – and later dismissed – Crossroads GPS continued to spend tens of millions on express election advocacy without revealing the funders behind that effort. Further, the FEC’s refusal to enforce the law has encouraged dozens of other ‘dark money’ groups to follow the example set by Crossroads GPS.”

Since its first foray into electoral politics in 2010, Crossroads GPS has continued to pour substantial amounts of money into each subsequent election. The Center for Responsive Politics ranks it the top-spending political nonprofit over the 2010, 2012 and 2014 election cycles, and it likely will remain a major player. But it has so far avoided the disclosure obligations imposed on political committees, and the IRS, intimidated by congressional critics of its scrutiny of political nonprofits, recently allowed it to claim tax-exempt status.

“Americans have been in the dark for long enough about who funds Crossroads GPS,” said Robert Weissman, president of Public Citizen. “It’s high time the FEC took action against Crossroads. Crossroads GPS’ new argument that it’s now too late to do anything about it just won’t wash.”

Read the brief (PDF).