Getting Dark Money Out of American Politics

Unless you’ve been living in a cave with poor wi-fi, then you’ll have a reasonable idea as to the health of American politics rights now. And the diagnosis is not good. Putting aside a reality-TV show star masquerading as Commander-in-Chief, and the whole merry go-round that that entails, equally as troubling is the malign influence of secretive “dark money” on the American democratic process.

“Politically active nonprofits – principally 501(c)(4)s and 501(c)(6)s – have become a major force in federal elections over the last three cycles. The term "dark money" is often applied to this category of political spender because these groups do not have to disclose the sources of their funding…” [1]

If that doesn’t sound at all good for American democracy, that’s because it isn’t. These are super PACs on steroids and the depths that dark money is now dragging the American democratic process down into are unprecedented. The amounts involved are obscene – hundreds of millions of dollars spent during federal election campaigns in recent years alone.

The Supreme Court’s 2010 ruling in Citizens United confirmed that the flood-gates were now open and that corporations (and trade unions) could effectively spend as much as they liked in support of a candidate or issue. Dark money has become the vehicle of choice to deliver that.

“The majority opinion in Citizens United takes up 57 pages, but it’s pretty efficiently boiled down as follows: (1) Money is speech; (2) corporations are people; (3) therefore, under the First Amendment, the government can’t stop corporations from spending money on politics pretty much however they choose.” [2]

This of course rips apart the very fabric of our democratic tapestry. Dark money is the very antithesis of democracy. The Founding Fathers surely did not envisage the removal of an unelected, unaccountable and moneyed King and supporting aristocracy only for the US to find itself at the whim and mercy of unaccountable money just a couple of centuries later?

That inevitably brings us to the question of what then can be done to stop dark money from further still increasing its chokehold on American democracy?

While over-turning inherently undemocratic case law such as Citizens United is certainly a desirable goal (more of which later), campaign self-funding is one proposition. While still dwarfed by those funded externally, self-funding is steadily increasing its profile.

Beto O’Rourke’s recent Senate challenge against Ted Cruz was self-funded. Rejecting Washington’s “politics as usual” O’Rourke, at the start of his campaign, O’Rourke stressed his self-funding credentials.

“I’m one of two members of Congress out of 535 that takes no corporate cash, no political action committee money. I don’t want you worried that when I’m taking a vote, making a decision, writing a bill, looking at an amendment, that I’m listening to anyone but you, the people that I want to serve and that I want to represent." [3]

With the Democrats regaining the House just last month, the issue of campaign financing and reducing the poisonous effect of dark money was given new impetus with the unveiling of the For The People Act (FTPA).

FTPA puts forth a range of measures designed to reverse the down trajectory of American politics further and further into the mire of dark money, secret donors and electoral financial unaccountability.

“The bill would require politically-active “dark money” 501(c)(4) nonprofits to disclose donors that contribute more than $10,000 and task the IRS with creating new rules for nonprofit political spending. It would prohibit the use of shell companies to funnel money to campaigns and super PACs and ban campaign contributions and independent expenditures from corporations with significant foreign ownership.” [4] [5]

Going back to Citizens United, the Supreme Court ruled that as corporations were effectively people, then they too were afforded the same Constitutional rights. Including freedom of political expression by way of campaign donations.

FTPA proposes a constitutional amendment to curtail that particular interpretation of freedom of speech. While conservative constitutionalists go swivel-eyed at the very thought, it is still though a reasonable proposal. Constitutional amendments happen more often than one thinks and have defined modern America – think abolition and female enfranchisement. Also, just as it is hard to believe that the Founding Fathers envisaged the Second Amendment to incorporate bump-stocks and walking around Walmart with an AR-15 strapped to your back, it is also highly unlikely that they would have deemed a corporation to have the same First Amendment rights as a citizen.

Better transparency, disclosure and reporting of campaign financing are other options. Again, we are of course at a point in time where our politics is being further distorted by the current Oval Office occupant. Trump’s understanding of disclosure and transparency are on a par with his understanding of climate change and freedom of the press. Still, pursuing legislation that would outlaw dark money secret donations is of course a desirable objective and is also found in the FTPA.

The sort of grass-roots Democratic and progressive activism that has burst into life since Trump’s 2016 victory is fertile ground for pushing back against dark money.

Given the glaringly patent fact that Trump is simply filling the swamp with yet more marsh-monsters and the likes of the NRA still continue to cast a bone-chilling shadow over large swathes of the Republican party, young, grass-root voters, engaging at the front-door and not in the boardroom, represent a potential sea-change in attitudes to dark money going forwards.

[1] https://www.opensecrets.org/outsidespending/nonprof_summ.php

[2] https://www.motherjones.com/politics/2012/06/undoing-citizens-united-dark-money

[3] https://www.politifact.com/texas/statements/2017/jul/27/beto-orourke/beto-orourke-claims-near-uniqueness-not-taking-cor

[4] https://www.opensecrets.org/news/2019/01/democrats-propose-campaign-finance-reforms19

[5] https://www.congress.gov/bill/116th-congress/house-bill/1