July 1, 2021

Whitehouse Slams SCOTUS Decision in AFPF Dark Money Case

Court paves the way to enshrine dark-money spending in constitutional law

Washington, DC – Senator Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Courts Subcommittee, released the following statement on the Supreme Court’s partisan decision in Americans for Prosperity Foundation (AFPF) v. Bonta, a case that paves the way for sweeping protections for anonymous “dark-money” spending in American democracy:

“The Court that Dark Money Built just handed dark-money donors a massive win. We are now on a clear path to enshrining a constitutional right to anonymous spending in our democracy, and securing an upper hand for dark-money influence in perpetuity. Americans hate dark money; they hate crooked special-interest influence; and they hate that their voice in their democracy can’t compete with a ‘tsunami of slime’ from mega-donors and corporations. This decision warps the legacy of NAACP v. Alabama by extending its protections to fossil fuel billionaires and massive corporations.

“Making matters worse, Justice Barrett participated in this decision. While this case was pending before the Court, another arm of the petitioners, Americans for Prosperity, spent in the seven figures to boost Barrett’s nomination for her current seat. Federal statute and the justices’ own decision in Caperton v. A.T. Massey Coal make clear she should have sat this one out. Instead, she dealt her boosters a win.

“In time, this decision will dwell among the scars on the Court’s record, alongside disgraceful rulings like Lochner and Citizens United.”

AFPF is the latest move in a campaign by powerful special interests to strengthen their influence over government following the Supreme Court’s 2010 decision Citizens United v. FEC. The case 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, a group at the center of the billionaire industrialist Koch family’s front group network, challenged California’s rules by arguing that the First Amendment guarantees a right to spend money to influence government in secret. In a 6-3 decision, with Chief Justice Roberts delivering the opinion, the Court ruled against California.

Earlier this year, Whitehouse and 14 colleagues filed a brief in the case. The senators warned 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 urged 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.

Read the senators’ full brief here.

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Meaghan McCabe, (202) 224-2921