If you spend too many days at academic conferences — admittedly an occupational hazard if you are a professor — inevitably you will hear this phrase: “That problem is a feature and not a bug.” It’s a clever shorthand for indicating that there’s a real permanent problem here, not just a passing annoyance.
And untraceable dark money is becoming a feature, not just a bug in our democracy. Dark money is money spent in an American election that is untraceable because of how our campaign finance and tax laws interact. Basically, if one routes political spending through an opaque non profit, then the public, including American voters, are none the wiser. Even people who dig in like journalists and academics frequently can’t get to the bottom of the source of political money.
Since 2010 to today, dark money spent in federal elections has topped $800 million. I fully expect that number to reach $1 billion by the end of the 2018 midterms. And this figure doesn’t count things that have recently come to light like completely unreported spending by foreign actors like the Russians who spent money buying online ads during the 2016 election. This falls into a largely unregulated abyss that I described for the Brennan Center for Justice.
{mosads}Congress could turn the light on dark money by either tweaking the tax code, or the election law, or even the securities laws to the extent the dark money is coming from publicly traded companies. The Honest Ads Act would do a lot to bring clarity to who is funding what in elections. But instead, Congress is largely on a path in the other direction hardwiring dark money into our elections.
The Congress — and here I really mean just a handful of members who are apparent zealots on the issue of keeping dark money dark like Majority Leader Mitch McConnell (R-Ky.) — has used the budgetary process to sneak in pernicious policy riders. Because the budgetary process has become so mucked up and irrational, lurching from one continuing resolution to the next with the possibility of the government shutting down or the U.S. careening through its debt limit, it’s hard for the public to keep track of what’s frequently a rushed and closed door dead of night process.
One policy rider that keeps making it into law is one that restricts the Securities and Exchange Commission (SEC) from making an anti-dark money rule. This prevents one part of the government from doing the right thing for investors and voters alike by letting us all know if a source of dark money is corporate.
The latest iteration of Congress enabling potentially more dark money instead of less is the move in the latest tax overhaul bill to eliminate the Johnson Amendment. This amendment keeps churches and other religious institutions out of politics. Right now, churches, synagogues or mosques that get involved in politics risk their tax exempt 501(c) status when they do. Getting rid of the Johnson Amendment would welcome mega churches into partisan fights and could create a new conduit for untraceable dark money in politics.
These items are slipped into large must-pass legislative vehicles with the hope that they will become part of law without real debate. This is getting ridiculous. Polling on dark money shows that Americans overwhelmingly and unsurprisingly hate it. They want more transparency not less. And so if you want this to change, then we need to make it clear through calls, emails, tweets and town halls, that sneaking in more pathways for dark money in our democracy is not ok.
The new campaign finance rules for how the 2018 and 2020 elections are going to be run are being written now. If the budget and the tax bill stay as is, that will mean more dark money spending bringing you barely truthful batches of negative political ads.
There is an alternative: (1) pass a clean budget without the pernicious policy riders; (2) pass a tax reform without trashing the Johnson Amendment; and (3) pass the Honest Ads Act so that voters get more information about who is trying to influence their votes.
Ciara Torres-Spelliscy teaches courses on election law, corporate governance, business entities and constitutional law at Stetson University College of Law in Gulfport, Florida. She has served as counsel in the Democracy Program of the Brennan Center for Justice at NYU School of Law providing guidance on the issue of money in politics and the judiciary to state and federal lawmakers, and has testified before Congress and state and legislative bodies as an expert on campaign finance reform. She is the author of the 2016 book, “Corporate Citizen? An Argument for the Separation of Corporation and State.”