The AFL-CIO and Change to Win have filed a complaint with the Internal Revenue Service (IRS) charging that two groups, the Center for Union Facts and the Marcus Foundation, violated their tax exempt status by engaging in prohibited partisan political activity during the 2008 election. The complaint was filed based on a conference call for market analysts hosted by Bank of America two weeks before the election, reportedly titled "The Impact of Card Check Legislation on the Retail Industry." According to the complaint, Rick Berman and Bernie Marcus overtly endorsed and tried to raise money to elect six Republican candidates.

The complaint states that during the call Marcus, head of the Marcus Foundation, warned "that, if elected, a Democratic Congress and a President Barack Obama would enact 'EFCA,' [Employee Free Choice Act] and he states that this would 'be the demise of civilization' and 'would destroy America." Marcus encouraged the call's participants to contribute to Republican Senate campaigns in key states to prevent EFCA from becoming law.