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The 2018 Elections Have $100 Million in Dark Money and Counting

Voters are more in the dark than ever about who’s funding political ads.

October 22, 2018

It’s been eight years since Citizens United v. FEC, and Amer­ica still does­n’t have trans­par­ency about the sources of money in polit­ics. To wit, over $100 million in dark money has been spent as of Octo­ber 17, 2018, with key weeks left in the midterms.

Dark money is money spent on polit­ics that can’t be traced to its original source. Most dark money becomes untrace­able when it is routed through an opaque nonprofit like a 501(c)(4) (a social welfare organ­iz­a­tion) or a 501(c)(6) (a trade asso­ci­ation).

There is some posit­ive news. A recent court case was a big win for trans­par­ency. CREW v. FEC, decided this year, mandates that those people and entit­ies who buy inde­pend­ent expendit­ures (other­wise known as polit­ical ads in federal elec­tions) must actu­ally name where they got the money. And the FEC has put out guid­ance on how to comply for ads purchased after Septem­ber 18, 2018. The Supreme Court refuses to inter­vene to stop the new trans­par­ency.

This is a big change. Before this court case, the U.S. was on track to top a billion dollars in dark money spent since Citizens United.

The catch is there is still a wide open avenue for dark money to come pour­ing in our elec­tions. CREW v. FEC only applies to inde­pend­ent expendit­ures. These are ads with Buckley v. Valeo’s magic words of express advocacy like “vote Quimby” or “vote against Quimby.” Yet many polit­ical ads fall into a differ­ent category from inde­pend­ent expendit­ures called “elec­tion­eer­ing commu­nic­a­tions.” These are broad­cast ads that never use the magic words but feature a federal candid­ate in the days lead­ing up to a federal elec­tion. The CREW v. FEC case does­n’t apply to elec­tion­eer­ing commu­nic­a­tions, thus those ads are likely to remain funded by dark money.

So why should you worry about dark money in our elec­tions? The lack of trans­par­ency means voters don’t know who is trying to influ­ence them, as polit­ical spend­ers will often choose Orwellian and benign sound­ing names that have noth­ing to do with the real money back­ing the cause. A notori­ous example was a group called “And for the sake of the kids,” which was funded by a coal company CEO named Don Blanken­ship.

The lack of trans­par­ency can also hit investors, who may have no idea that a polit­ical expendit­ure is funded by a publicly traded company they own as share­hold­ers.

And finally dark money could be hiding illegal foreign money. For more on that possib­il­ity, keep an eye on indict­ments from the Special Coun­sel Robert Mueller. He’s already found illegal polit­ical ads on Face­book paid for by Russi­ans that should have been repor­ted to the FEC. The ads in ques­tion urged view­ers to vote for Jill Stein.

Inter­est­ingly, these Jill Stein ads from 2016 would be covered by the new CREW v. FEC if they ran in a future pres­id­en­tial elec­tion because they contained the magic word “vote”. But any clever Russian, or other bad actor, who wants to hide among the dark money in the future just needs to shift to other types of polit­ical ads that still don’t require full disclos­ure of where the heck the money came from.

If you want to learn more about dark money quickly, I recom­mend the new docu­ment­ary by the same name, Dark Moneyabout the phenomenon in Montana and Wiscon­sin elec­tions, which is stream­ing on PBS. You could also check out Jane Mayer’s book Dark Moneywhich is focused on the decades of secret­ive polit­ical spend­ing by the Koch Broth­ers.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Photo illus­tra­tion: BCJ/Shut­ter­