OpenGov Voices: Putting a spotlight on dark money (Sunlight Foundation)
Last month, as politicos and policy wonks awaited the outcome of Congress' back room budget negotiations, rumors swirled around Washington over which last minute riders would make it into the final omnibus bill. Particularly troubling to many was a provision pushed by Senate Majority Leader Mitch McConnell, D-Nev., that enabled party committees to spend unlimited sums in coordination with their candidates. This proposal would have put yet more pressure on office holders to raise money to pay for such spending. The proposal — which drew condemnation from liberal Democrats and Tea Party Republicans alike — was ultimately defeated, as were similar measures to end the presidential public financing "check off" system and block the president from issuing an executive order requiring government contractors to disclose their political spending. Even so, while these provisions may not have become law, anti-reform congressional leaders were still able to include riders banning the IRS from clarifying its regulations on dark money groups and preventing the SEC from requiring corporations to inform their shareholders whether their money is being spent on political causes.
The Campaign Legal Center (CLC) has been pushing back against these and other efforts designed to keep the American people from finding out who's behind the billions of dollars being poured into elections, but as the fight over the omnibus riders shows, wealthy donors and the officials whose campaigns they fund are more determined than ever to keep the voting public in the dark. Poll after poll has shown that voters of both parties overwhelmingly oppose the rise of anonymous dark money in our elections, and through the dedicated efforts of our staff and partner organizations, CLC is working to ensure public accountability.
The Supreme Court has affirmed, in no uncertain terms, that requiring disclosure of political spending is allowed under the First Amendment. Famously, in the otherwise controversial Citizens United decision, eight of the nine Justices agreed that "transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." But the Court's clear endorsement of disclosure requirements hasn't stopped reform opponents from trying to undermine them: Lawsuits in Washington, Delaware, Colorado, Hawaii and more have sought to strike down laws protecting the public's right to know who is spending money to elect candidates and buy influence. In each of these cases, CLC filed briefs supporting the challenged disclosure requirements, and courts (including the Supreme Court) have repeatedly recognized that disclosure and transparency laws remain an essential part of an open political discourse without running afoul of the First Amendment.
Now, reform opponents are employing new tactics in their effort to keep dark money out of the public eye. In Wisconsin, for example, Gov. Scott Walker just signed a bill to significantly weaken disclosure laws and turn the state Government Accountability Board from a nonpartisan enforcement agency into a pair of explicitly partisan commissions. In Connecticut, a move to de-fund the state's Citizens Election Program—one of the nation's most robust public financing systems for state elections—was only narrowly stopped after public outcry from members of both parties. In light of increasing measures like these at the state level, as well as near-total inaction on money in politics at the federal level, CLC has renewed its efforts to promote and protect disclosure and ethics laws in state and local governments. New publications like "Blueprints for Democracy: Actionable Reforms to Solve our Governing Crisis" (a joint project of CLC and Issue One) offer state and local policymakers practical solutions based on existing programs that promote government ethics and transparency while still holding up against challenges in court.
No one law, court decision or even constitutional amendment will be sufficient on its own to sweep back the rising tide of secret money in politics. But from Maine to Montana, more voters are showing that they support an essential (if sometimes imperfect) first step: finally bringing "dark money" into the light.
Trevor Potter is a former chairman of the Federal Election Commission, and served as counsel to the presidential campaigns of George H. W. Bush and John McCain. He is president of the Campaign Legal Center and a senior adviser to Issue One. He is also a member of the Washington, D.C., law firm Caplin & Drysdale.
This blog originally ran in Sunlight Foundation on January 11, 2016. To read it there, click here.