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 Money, about the phenomenon in Montana and Wisconsin elections, which is streaming on PBS. You could also check out Jane Mayer’s book Dark Money, which 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/Shutterstock.com)