Written by Terry Clayton and Elizabeth Harris
The rise of dark money in American politics is a troubling trend that threatens democratic governance and the integrity of elections. There is a long-standing bipartisan consensus that public disclosure is essential for elections to function in a democratic system. Candidates must be accountable to voters and must publicly explain their policy positions and sources of campaign funds. Voters must also be able to hold their representatives accountable for their votes and other actions by easily knowing who contributed to their campaigns. For this accountability to exist, voters must know the identities of candidates’ supporters and how much those supporters spent on a campaign. Dark money organizations can and do contribute significant amounts to candidates through issue ads that do not require disclosure of the donors’ identities. The media’s ministering is important in this equation because the role the media plays is considered ‘The Fourth Estate.’ In terms of government, this role informs and shapes public opinion. Dark money spending is problematic because voters, other donors, and sometimes the media itself are unaware of the amount being spent on behalf of specific candidates, and for what reasons it is being spent. Essentially, dark money amounts to legal bribery.
Can SCOTUS Be Held Accountable for Dark Money?
The Supreme Court has opened the door to more dark money in judicial elections, but it is not without some regulatory oversight. Congress is not powerless in this arena and could act to better regulate dark money in judicial elections. The DISCLOSE Act is a proposed law that would require 501(c)(4) social welfare organizations to publicly disclose donors that fund $10,000 or more worth of independent expenditures, i.e. ads that advocate for or against a candidate for federal office but are not coordinated with the candidate’s campaign. (https://www.opensecrets.org/news/2022/09/with-deadlocked-vote-on-dark-money-disclose-act-fails-to-clear-senate/). Under the DISCLOSE Act, if a candidate were attacked by a dark money group, the public would be able to see who had provided the funding for that attack.
Leveraging Judicial Elections as Reform Advocates
Judicial elections provide an excellent opportunity for reform advocates to bring the dark money problem to the forefront of public attention. If a 501(c) (4) “social welfare” group were to fund $1 million worth of advertising that attacks a specific candidate in a state supreme court election, voters in that state would be able to see that a dark money group funded the ad without being able to see who specifically funded it. Such a scenario is one way in which dark money can significantly distort the election process but it can also be used as a rallying cry for reform. Candidates and reform advocates should be working to draw attention to the growing influence of dark money on judicial elections. If voters are aware of the problem, they may be more likely to support candidates who support restrictions on dark money. Better yet is to eliminate dark money entirely and have national elections financed by the government.
The rise in dark money has been a troubling development for American politics, and it has especially been worrisome in judicial elections. The McCutcheon v. FEC ruling has only exacerbated the problem, and reform advocates need to find ways to bring the issue to the public’s attention. Judicial elections present a unique opportunity to do so. Judges in state supreme courts are elected by voters, and they have a significant influence on the political process. The public should be aware of this influence, and reforms could be enacted to curtail the influence of dark money in judicial elections. There have been a number of proposals to end lifetime appointments for members of the Supreme Court. This and other possible reforms could be a subject for a future post.
In addition to legislative action, reform advocates need to engage more directly with voters. Judicial elections are a unique opportunity to reach out to voters who may not consider themselves as engaged in politics. Judges can help educate citizens about the impact of dark money on their election process, and they can also serve as an example of how citizens can make their voices heard when it comes to political issues. Judicial elections also present a unique opportunity for reform advocates who want to engage people beyond the halls of government. They can use judicial elections as an opportunity for them to build relationships with those outside government that could be useful in future reform efforts.