High-dollar super PACs and advocacy groups failed to score big wins in the recent elections, but they may have better luck with their next act: lobbying Capitol Hill. From anti-tax activists to environmental organizers, special interest players are pivoting to the policy arena and bringing their unrestricted super PACs with them. It’s a trend that worries campaign reform advocates, who warn that the Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling may do more to distort policymaking than elections.
“It’s part of the permanent campaign,” said Rick Hasen, a law professor at the University of California, Irvine. “Sometimes it’s about issues, and sometimes it’s about candidates. But you’re always pushing the message.”
Big-spending GOP super PACs such as American Crossroads and its affiliated nonprofit, Crossroads GPS, spent more than $175 million but failed to win the White House or the Senate. Despite their record, the group’s organizers say they’ve just begun to fight. Like many campaign-oriented advocacy groups, the Crossroads operation couples a super PAC with a tax-exempt lobbying arm.
Crossroads officials are gearing up for a lobbying and advertising campaign focused on budget, energy and health care issues, starting with the looming fiscal cliff that will trigger automatic tax increases and spending cuts if Congress doesn’t enact a deficit-reduction plan. GOP operative Karl Rove, who helped launch the group, recently told the Washington Post that Crossroads is considering branching out to back candidates in GOP primaries, a new tactic.
The move reflects the growing heft of tea-party-aligned groups such as the Club for Growth and FreedomWorks for America, which waded into primaries — sometimes to GOP leaders’ consternation — and had a higher general election win ratio than Rove’s operation. The Club for Growth Action super PAC had a 41.37 percent return on its investment, according to the Sunlight Foundation, compared with 1.29 percent for American Crossroads and 14.4 percent for Crossroads GPS.
“The purpose of the Club for Growth is to pass pro-growth policy in Congress, and we do that in two ways,” Club for Growth spokesman Barney Keller said. “One is through issue advocacy: letting members of Congress know where we stand and supporting economic freedom in Congress. And the other way we do that is by electing more pro-growth votes through our super PAC. And I think that members of Congress know that we are not afraid to replace a bad vote with a good one, if we can.”
It’s only a matter of time before mainstream lobby groups follow suit, using super PACs as the Club for Growth does to warn lawmakers who don’t fall in line that campaign attack ads are in store, some on K Street predict. Election-style advocacy campaigns that use TV ads, social networking, grass roots and “grass-tops” lobbying have long been on the rise. But super PACs accelerate that trend.
“People are going to be looking for new tools to break through the noise in D.C.,” said Rich Gold, a partner at the law firm of Holland & Knight. “I could see super PACs being set up by industry sectors, or even by coalitions interested in a particular issue.”
The campaign-style advocacy, whether by super PACs or their lobbying affiliates, increasingly falls outside the lobbying disclosure regime. When super PACs run campaign ads targeting members of Congress, they report those expenditures to the Federal Election Commission under campaign finance rules. But those ads don’t count as lobbying and aren’t reported as such. At the same time, many “issue” ads and grass-roots campaigns run by advocacy groups affiliated with super PACs don’t get reported either because lobbying rules largely focus on meetings and contacts with lawmakers.
Conventional “PACs and lobbying disclosure are starting to appear like quaint anachronisms,” Gold said.
Some observers are more skeptical that super PACs will take hold as lobbying forces, particularly with trade associations and publicly traded corporations wary of alienating customers.
“In advocacy groups where you’ve got some wealthy people that feel strongly about an issue, you probably will see some growth,” said Doug Pinkham, president of the Public Affairs Council. “It’s not likely to happen in the trade associations, and it’s not likely to happen in big companies.”
Still, with more than 1,000 super PACs registered with the FEC, representing groups from farmers to realtors to health care professionals continues to grow. The National Association of Realtors operates a super PAC that spent $2.8 million this election cycle, public records show. The American Dental Association’s new super PAC spent $323,000.
Other smaller super PACs include the Autism Super PAC and Disabled Citizens United. Environmental groups and labor unions have also embraced super PACs, with such groups as the League of Conservation Voters and the Service Employees International Union spending millions of dollars on often-successful campaigns this election cycle.
Like the Club for Growth, the SEIU is already lobbying hard on the fiscal cliff. The labor union is urging lawmakers to tax high-income earners and to avoid cuts to Medicare and other entitlements. The Club for Growth is equally adamant that tax rates should be lowered.
Caught in the middle are members of Congress, who view the developments with growing alarm. Lawmakers and candidates spooked by super PACs are spending more time than ever fundraising and are increasingly vulnerable to closed-door threats, campaign finance experts say.
“I think it’s a way for these groups to signal what policies they’re going to care about and help ensure that legislators stay in line — or risk the wrath of large spending against them in the next election,” Hasen said. “For House members, that next election’s always around the corner.”
Correction, Nov. 13
A previous version of this article misidentified Rick Hasen’s title. Hasen is a law professor at the University of California, Irvine.
Terri Henderson, 6, center, whose mother is El Salvador, attends a rally with members of Congress at Union Station's Columbus Circle to announce the Restore Opportunity, Strengthen, and Improve the Economy (ROSIE) Act on July 29, 2014. The legislation provides incentives for government contractors to pay a living wage and other benefits that would help low-income workers.