Shining Light on Dark Money in Politics

Poster from a 2017 4th of July parade. Credit: https://www.flickr.com/photos/cindyshebley/35610308541

​​Rhode Island Senator Sheldon Whitehouse https://www.flickr.com/photos/sdmc/35886798075/

Senate Republicans recently blocked legislation that would have created transparency requirements for dark money political contributions. The bill’s sponsor, Sheldon Whitehouse (D-RI), has been on a crusade against dark money ever since the Supreme Court overturned campaign finance rules to allow corporations to raise and spend unlimited amounts of money for political purposes from anonymous donors. In 2020 alone, dark money groups spent more than $1 billion on super PACs, advertising, and political contributions. Anonymous donors have not only been financing massive ad campaigns during elections, but have also taken a major role in the courts by funding litigation and supporting judicial nominees. The DISCLOSE Act would have forced these dark money groups to disclose any donors who give more than $10,000 during an election cycle, and yet it did not pass. This is unacceptable. There should be transparency in political contributions because people have a right to know who is attempting to influence politics and the super-rich should not be able to spend unlimited amounts on elections.

Dark money refers to any kind of political spending by organizations which don’t have to disclose their donors. The DISCLOSE Act would have added some much needed transparency to the political funding process. Despite unified support from Democrats and the White House, it was blocked. Senator Whitehouse, sponsor of the DISCLOSE Act, believes that massive corporations should not have such an outsized influence in politics, and I agree. However, Whitehouse has struggled to bring together a coalition against dark money, and his latest attempt at passing legislation failed. He has been unable to generate enough interest in taking on dark money from the public and within Congress for a few reasons. Voters have not put campaign finance reform high on their list of priorities because they are largely uninformed on it and there are many other issues which have been in the spotlight as of late, such as inflation and abortion. Furthermore, members of Congress on both sides of the aisle have perverse incentives when it comes to campaign finance because they directly benefit from dark money spending. They have little reason to take on reform which prevents it from getting any national attention and causes voters to not care about it, thus creating a cycle which has led to the lack of action on dark money in politics. 

The rise of dark money in American politics began with Citizens United v. Federal Election Commission in 2010, wherein the Supreme Court ruled on the side of a nonprofit group promoting a film criticizing then presidential candidate Hillary Clinton. The court held that limiting corporations from independent political spending violates the First Amendment’s right to free speech. Prior Supreme Court precedent held that the government had a role in preventing corruption, but in Citizens United the court deemed that independent political spending would not lead to corruption. This opened the door for groups such as Super PACs to raise and spend unlimited amounts of money while keeping their donors anonymous, with the only stipulation that they are not able to directly coordinate with candidates. According to an independent watchdog organization, 2,342 Super PACs have spent around $600,000,000 in the 2021-2022 election cycle alone.

Senator Whitehouse has aimed his crusade more specifically at how dark money groups have influenced the court system. In his 30-minute testimony during the confirmation hearing of Supreme Court Justice Amy Coney Barrett, Whitehouse described in detail how conservative interest groups like The Federalist Society and the Judicial Crisis Network have worked to support judicial nominees and bring forward litigation in an effort to push the court in an originalist direction. He argued at the time that their goal was to confirm conservative justices so as to eventually reverse Roe v. Wade, Obergefell v. Hodges, and the Affordable Care Act cases. With the recent overturning of Roe v. Wade in June of this year, Whitehouse was proven correct on one count. So far.

On the other hand, dark money groups do not only exist within right-wing spheres, and Democrats have benefited off of them since Citizens United was founded. In fact, the same independent watchdog organization reported that Democrats surpassed Republicans in dark money, spending $200 million to $514 million during the 2020 election. On the judicial side, conservatives have taken shots at liberal dark money groups’ influence, with a particular focus on Demand Justice, an organization which has anonymous donors and formed in opposition to Judicial Crisis Network and campaigned against Supreme Court Justice Kavanaugh and Coney Barrett’s confirmations. Republicans like Senator Chuck Grassley (R-IA) have criticized Demand Justice for its role in supporting Supreme Court Justice Ketanji Brown Jackson’s confirmation, stating that the group “seems to be in charge of the judicial selections in this administration.”

It is clear dark money operates on both sides of the aisle, and it should not continue to be anonymous because people have a right to know who is attempting to influence politics. There should be more transparency in politics, because trust in government is at near historic lows according to Pew Research Center. Requiring groups to disclose their donors would allow people to make more informed decisions when voting in elections and, in turn, increase trust in their elected officials. Those who support anonymity in donating would likely say that people should be able to keep their money private just like they have the choice to not tell others who they voted for. However, an individual’s voting patterns are much different from money because a wealthy person’s contributions can have a much larger effect on the outcome of elections than one single vote. 

Furthermore, donors should not be able to spend unlimited amounts of money on elections. The Supreme Court determined that money is a form of free speech and is therefore protected by the First Amendment, but this perspective is backwards and goes against decades of campaign finance precedent. Free speech is about expressing one’s voice;political contributions are about influence. Free speech contributes to the exchange of ideas, while political contributions try to affect decision-making directly. This opens up the door to corruption and, thus, should not be protected by the First Amendment. Letting rich donors contribute unlimited sums of money for electoral purposes gives legislators an incentive to listen to those with money over their own constituents. This goes against the ideals of democracy because instead of following what the majority of the public wants, government officials are beholden to the desires of the super-rich. Groups should not be allowed to raise and spend unlimited amounts of money on elections because it prevents the people’s will from being sufficiently heard.  

If dark money is so bad, why has Senator Whitehouse—or anyone for that matter—been unable to do anything about it? The answer lies in a cycle that rotates between voters and members of Congress. On Congress’ side, legislators have little incentive to reform the campaign finance system because they benefit directly from it. It would not be a particularly strategic decision to threaten losing those funds with any kind of limits or transparency legislation. Furthermore, dark money is spent on both sides which makes it difficult for either party to take up the mantle as it would be vulnerable to claims of hypocrisy from the opposing side. As a result, members of Congress have not joined Senator Whitehouse in forming a strong coalition against dark money. Without politicians making it a priority, campaign finance reform gets no national attention which, in turn, prevents voters from making it a priority. This is the other side of the cycle. Voters haven’t put dark money in the spotlight because it is a complicated subject and does not directly impact their daily lives like other political issues do, such as the state of the economy. This affects lawmakers, as without strong support from constituents, they do not have a strong reason to take up campaign finance reform. This goes back and forth as voters and members of Congress go in a circle causing each other to not take action on dark money.

The current political climate is also hyper-polarized and riddled with culture wars which has kept Whitehouse from achieving anything on campaign finance reform. With the rise of TV and social media, the public’s exposure to politicians is constrained to short, limited segments and pull quotes. Topics that can easily turn into hot button issues are ones that can be framed in a video, tweet, or Facebook post. Furthermore, many policy issues of late have been put into the perspective of a culture war between Democrats and Republicans. Topics like critical race theory and abortion have turned into debates that are focused less about policy and more about an us-versus-them dynamic. Dark money doesn’t fit into these frameworks because both sides benefit from anonymous donors. Campaign finance reform can’t easily be turned viral and doesn’t fit into the current left-right culture war which has played a significant role in blocking any progress from being made.

Liberal and conservative groups both raise and spend unlimited anonymous sums, yet Senator Whitehouse argues that solely Republicans have had success in the courts thanks to it. The answer to this is part of the problem about dark money in the first place: it’s anonymous. In addition to this, dark money groups can’t coordinate with parties or candidates on strategy. There is no way to evaluate how effective one organization’s campaign for or against a particular candidate or bill is versus another because they are anonymous and independent. From the perspective of the courts, there isn’t data on how much conservative versus liberal dark money groups raise and spend, so it is difficult to conclude whether one side gets more support than the other. However, we do know that former President Trump and members of his administration have said that Leonard Leo, who has links to The Federalist Society and conservative dark money groups, was involved in the selection of his judicial nominees. Thus, although we can’t quantify how much dark money is responsible for conservative successes in the courts, we do know they have had some effect.

The best solutions to dark money in politics are politically difficult, but still worth driving toward. The most straightforward goal is to raise awareness around campaign finance reform within Congress and the public. This must be achieved by a coordinated, bipartisan effort instead of relying on one policy entrepreneur. Senator Whitehouse has been unable to gain national attention for the issue, so congressional leadership and the White House have to work to make it a priority. Getting campaign reform on the national agenda opens up legislators to pursue further action. The next step is to pass legislation such as Senator Whitehouse’s DISCLOSE Act to add more transparency to campaign finance. Although the bill failed, creating a coalition around campaign finance reform will make future attempts successful. Finally, the loftiest goal should be to reverse Citizens United so that Congress can limit political spending from independent groups and corporations. The current ideological makeup of the court would likely vote against reversing Citizens United, so this would take a long-term effort to appoint justices and judges to the courts and bring forth litigation aimed at reversing the decision.

Dark money has become an increasing threat to transparency and trust in government, and recent failed attempts at reform show how difficult of a problem it is. Perverse incentives within Congress and a lack of attention from the public have created a vicious feedback loop which prevents any change. Political leaders need to make a significant investment of time and effort into making campaign finance reform into a high priority issue so as to mobilize support and successfully pass future transparency legislation. As Biden said, “dark money has become so common in our politics, I believe sunlight is the best disinfectant.”