Written by Terry Clayton and Elizabeth Harris
As political scandals continue to dominate the media landscape and threaten the integrity of American democracy, another potential scandal has entered the equation: dark money. This term refers to organizations that are exempt from federal election disclosure requirements and instead operate with minimal or no transparency. Dark money is a major problem for American politics, and it’s getting worse. This is particularly true in judicial races where candidates do not need to disclose their campaign finances. Such organizations are able to exist without any public oversight, which gives them an opportunity to fund only those political activities that can be kept secret from voters and the press.
The Supreme Court’s recent McCutcheon v. Federal Election Commission decision was very troubling for several reasons, but the one I want to talk about is that it has opened the door for even more dark money in judicial elections by eliminating aggregate limits on the total amounts of money that candidates can spend on their campaigns. According to OpenSecrets, spending by non-individual dark money organizations in judicial races rose by 650 percent between 2010 and 2014—from $43 million to $228 million. This new spending is likely being used primarily to fund ads attacking candidates rather than ads encouraging people to vote. In 2010, the vast majority of dark money contributions went towards issue-based ads that did not advocate for a specific candidate. But by 2014, nearly all of the spending went towards ads advocating for, or attacking, specific candidates.
What is “Dark Money” and Why Should We Care?
Dark money is a type of political spending that is not disclosed to the public and cannot be traced back to its original source. Much of the increased spending enabled by the Supreme Court’s McCutcheon decision is attributable to groups operating under a veil of secrecy. Unlike political ads that are paid for by a named individual or group, dark money is given to an organization that does not have to disclose its donors. Such organizations can be nonprofit 501(c)(4) “social welfare” groups, trade associations, or 501(c)(6) business associations.
These groups are not required to disclose their donors to the public, even after they have been granted tax-exempt status. The reasons why people choose to donate to dark money organizations vary. Some donors may be seeking to avoid government investigation after breaking the law. Others may simply want to keep their political activities and views private and out of the public eye. Still others may be attempting to influence elections through a quid pro quo with the understanding that, if elected, the decisions made will benefit the individual or organizations who them the dark money without being seen as partisan. Whatever the ultimate motivation of donors, the existence of dark money has created an environment in which candidates and special interests can engage in political activity without fear of public accountability. In a divided Congress, a candidate from a party where many members receive dark money may speak about reform but will ultimately be obedient to the dark money donors. A few years after the McCutcheon decision, it appears that spending by dark money groups has also increased significantly in judicial elections.