January 15, 2021

Credibility Crisis: ‘Dark Money’ Influence Could Soon Become a Constitutional Right

The nation faces a dark money crisis as anonymous influence spreads malicious disinformation and corrupts and disrupts our politics. And now a case coming before the court could lock in dark money influence as a constitutional right.

The Supreme Court faces a credibility crisis. This crisis intensifies after nearly $100 million in anonymous funding—known as “dark money”—entered the confirmation fights of the last three justices. At the same time, the country faces a dark-money crisis as anonymous influence spreads malicious disinformation and corrupts and disrupts our politics. And now a case before the court could lock in dark money influence as a constitutional right.

Big donors have reason to smile. The Republican majority’s binge of 80 partisan 5-4 decisions provided them big victories. The worst was Citizens United v. FEC, which launched unlimited money into our elections and opened the gateway to unlimited dark money. Special interests with unlimited money to spend took no time at all figuring out how to spend it anonymously, hence the dark money “tsunami of slime” sloshing through our politics.

Want an example? Citizens United gave fossil fuel interests the political weaponry to quash bipartisan climate progress. The timing is clear. Before Citizens United, lots of bipartisanship; after it, a partisan blockade for a decade. How exactly was it done? With no transparency, we don’t know. Perhaps direct spending or threats in primaries and elections; perhaps orchestrated barrages of political spending through super PACs and nominally “independent” groups; perhaps untraceable threats and promises of unlimited spending. However done, the lost decade on climate change was lost to Citizens United.

Which brings us to the case, Americans for Prosperity Foundation v. Becerra, now before the high court. Americans for Prosperity Foundation is part of a constellation of Koch-affiliated front groups funded by dark money. The foundation is organized as a 501(c)(3) nonprofit prohibited from political activities, but it is linked to Koch-affiliated 501(c)(4) “social welfare” entities that do engage in politics. The Koch political operation used an Americans for Prosperity Foundation 501(c)(4) affiliate to spend millions to support the nominations of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who will decide this case.

Anonymous donors hide behind these 501(c)(4) “charitable” organizations and spend money from hiding on political campaigns and on “nonpolitical” disinformation and propaganda, with their identities undisclosed—at least to the public. Big donors can easily communicate their generosity, and its terms, to candidates and parties.

Becerra nominally involves a tiny technical question: Can California tax officials have access to IRS records of donors to 501(c)(3) nonprofits fundraising in the state? But roughly 70 dark-money groups have flocked in as amici curiae asking the court to hear the case, an unprecedented gathering of the dark-money clan. Why such interest? Many of those groups spend on elections and on “nonpolitical” disinformation supporting elections efforts, and they need to keep their donors anonymous. This case tees up the court to lock in their influence by protecting dark money under the First Amendment. Their ultimate proposition is that the First Amendment protects political covert operations fueled by massive amounts of dark money. That proposition would give constitutional protection both to direct election spending and to disinformation campaigns that provided the propaganda cover for those political operations, so no wonder the dark-money vultures are gathering.

This protected-secrecy proposition got only one vote in Citizens United, that of Justice Clarence Thomas. Indeed, the Citizens United decision was predicated on transparency; transparency was the decision’s answer to the danger of big-money corruption. But Thomas is often a leading indicator for dark-money influence; three more justices have been added since Citizens United, all through a dark-money-controlled selection process; and Justice Samuel Alito could make a fifth vote. If you think this is a stretch, don’t. Big dark-money groups are already asserting this theory. In response to official questions from Congress, huge corporate interests have “pleaded the First”—declining to answer questions on grounds that their secret dark-money activity is protected by the First Amendment.

There may be another ominous signal: a case that could have helped repair the Citizens United dark money problem. Lieu v. FEC raised a question left open by Citizens United: Did allowing unlimited spending by outside groups in elections mean that unlimited donations to those groups must also be allowed? That distinction matters. Citizens United launched super PACs, unlimited spenders fueled by massive and often anonymous donations. If these unlimited political donations were restrained, corruption in politics would be lessened. The Court That Dark Money Built had the chance, with no threat to Citizens United’s text, to rein in super PACs and their often-anonymous donors, and declined.

Citizens United was factually flawed: wrong that unlimited spending in politics cannot be corrupting, and wrong that “independence” or “transparency” would protect against that corruption. The political effects have been devastating. Unlimited political spending made anonymity in spending useful, and nonenforcement of the “transparency” predicate made it possible. The corrupting, nontransparent dark-money mess we face in America is the predictable result. Carefully watch dark money’s new additions to the court as the vultures circle around Becerra.

By: Sheldon Whitehouse