March 31, 2021

Senators Sound Alarm Over SCOTUS Case Threatening Constitutional Protection for Dark Money

Whitehouse and 14 Senate colleagues file brief in AFPF v. Rodriquez; Case opens the door to guaranteeing billionaires and corporations the right to drown democracy in unlimited anonymous spending


Washington, DC – Senator Sheldon Whitehouse and 14 colleagues filed a brief with the U.S. Supreme Court today in Americans for Prosperity Foundation v. Rodriquez, a case that opens the possibility of constitutional protection for anonymous “dark money.” The challenge before the Court is the latest move in a campaign by powerful special interests to cement their influence over government following the 2010 Supreme Court decision in Citizens United v. FEC. The senators warn that siding with the wealthy special interests that propelled the case to the Court would permit dark money’s smothering influence over American democracy to grow. The senators urge the Court to uphold the limited nonprofit disclosure requirements at issue in the case and to help check the decline in Americans’ confidence in their government.

Joining Whitehouse on the brief are Senators Patrick Leahy (D-VT), Ron Wyden (D-OR), Dick Durbin (D-IL), Amy Klobuchar (D-MN), Jeff Merkley (D-OR), Chris Coons (D-DE), Richard Blumenthal (D-CT), Tammy Baldwin (D-WI), Mazie Hirono (D-HI), Elizabeth Warren (D-MA), Edward J. Markey (D-MA), Cory Booker (D-NJ), Chris Van Hollen (D-MD), and Tammy Duckworth (D-IL).

Citizens United opened the door to unlimited political spending by powerful influencers,” the senators write. “Rampant violation of that decision’s transparency predicate has allowed such influencers to wield that power anonymously, through dark-money expenditures. The next goal . . . is for dark-money contributors to secure broad constitutional protection of their anonymous influence, so they can attack any and all disclosure requirements in other contexts — a ‘moon shot’ to lock in dark money’s hold on our politics and policy-making, possibly forever.”

Americans for Prosperity Foundation v. Rodriquez (formerly Becerra) turns on a seemingly small question of whether California can collect limited information on large donors to nonprofits operating in the state. The state, which does not make the information public, uses the information to help in administering taxes and to enforce rules governing nonprofit organizations’ tax-exempt status. Americans for Prosperity Foundation (AFPF), a group at the center of the billionaire industrialist Koch family’s front group network, challenged California’s rules.

The case is playing out against a backdrop of exploding special-interest spending in elections. Since the Supreme Court’s Citizens United decision, dark-money spending in our elections has now topped $1 billion, and the pace of spending by outside forces (i.e., not the candidates themselves) is accelerating. According to the Center for Responsive Politics, outside spenders—super PACs, dark-money groups, and political parties—spent $2.6 billion in federal elections during the 2020 election cycle; that figure is roughly twice what was spent in the last presidential cycle. Only 30 percent of this outside spending is made by groups that fully disclosed their donors, the lowest percentage in American political history.

In their brief, the senators reveal how dark money helps special interests rig government in their favor and document the corrosive effect that secret influence has on democracy. Dark-money groups use political attack ads, lobbying, opposition research, public relations campaigns, amicus briefs, and other tactics to sway policymakers, federal bureaucracy, and the courts to deliver their desired outcomes. Polling shows the public, seeing the special-interest assault on government, believes overwhelmingly that big-money donors hold too much power over the federal government. Surveys also show that droves of Americans have lost faith that their voice matters in their democracy.

AFPF now seeks First Amendment protection for its dark-money scheme by urging the Court to extend a landmark Civil Rights Era precedent and declare a constitutional right to anonymity for its donors. But the case AFPF offers as an authority, NAACP v. Alabama ex rel. Patterson, dealt with markedly different circumstances than those present in the case. The senators note figures from the Alabama Museum of Peace and Violence that document nearly 4,100 lynchings in the segregated South. Bombings, shootings, beatings, and countless other forms of violence posed a constant threat to those backing the cause of Civil Rights. The billionaires, massive trade organizations, and giant corporations behind the push to entrench dark-money influence face very different conditions.

As the senators note, they themselves face intimidation as public servants. Those threats include the invective hurled by an angry mob at the Capitol on January 6—a mob that assembled at a dark money-funded rally supporting Donald Trump and his false election claims earlier in the day. Nonetheless, public officials trust in law enforcement to guard their safety and they accept harsh language aimed at them as part of the job.

“As for the criticism and personal risk that may come with taking a stand on issues of public importance, amici Senators have all received threats to their safety,” the senators write. “If it is good enough for politicians who are far more visible and vulnerable, it should be good enough for the extraordinarily wealthy dark-money influencers dominating our public sphere from the shadows.”

The senators note the absurdity of major right-wing, dark-money funders seeking to exploit the civil rights legacy of Patterson when reports show right-wing, dark-money groups actively suppressing the minority vote in the South. In fact, groups filing amicus briefs in AFPF have been linked to the same right-wing funding organizations behind voter suppression efforts in numerous states.

The senators also point to the scores of dark-money funded amici curiae – so-called “friends of the court” – rallying in support of the dark-money petitioners in the case. Over 60 amicus groups linked to the petitioners have filed briefs in support of the petitioners during the initial stage of briefing, with more likely at the next stage. This enormous gathering of amici appears to outstrip other recent cases that dominated the headlines, such as the Affordable Care Act (King v. Burwell and NFIB v. Sibelius), labor rights (Janus v. AFSCME), and the Consumer Financial Protection Bureau (Seila Law v. CFPB). The gathering points to the high stakes of a decision paving the way for First Amendment protection for dark money, the senators argue.

“The flotilla of anonymously-funded and largely industry-aligned nonprofit organizations filing amicus briefs in support of Petitioner should set off alarm bells that something bigger than California’s tax disclosure law is at issue,” the senators write. “The dots are not hard to connect. The bigger prize being sought is blanket constitutional protection of dark money and secret influence.”

The senators continue, “The scores of amici appearing in support of Petitioner both here and at the certiorari stage would seem to suggest a broad consensus. However, a number of them represent a small group of very large special interests and donors, including the Koch family itself, Petitioner’s principal support. The calls for absolute protection of dark money from disclosure are, as in the horror film, ‘coming from inside the house.’”

Whitehouse, who led the drafting of the brief and serves as Chair of the Senate Judiciary Subcommittee on the Courts, has written a number of Supreme Court briefs highlighting the threat of dark-money influence on government.

Read the senators’ full brief here.

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