Supreme Court leaves in place decision that will shine a light on dark money

The disastrous Citizens United decision in 2010 is often blamed for the explosion in dark money in recent elections. But that decision actually presumed full disclosure of donors in elections. Instead, the failures of the Federal Election Commission (FEC) to enforce existing disclosure laws is one reason we have dark money – and the failure of Congress to step in and write more complete disclosure rules is the other.

Recently, in a victory for transparency in elections, a lower court ruled that groups spending money on this fall’s midterm election races must disclose their donors. Then, days ago, both the D.C. Circuit and the U.S. Supreme Court rejected a plea from a dark money group to stay the lower court’s decision, so it now takes immediate effect for the remainder of this election year.

The lower court order struck down an FEC rule that had arbitrarily narrowed the scope of disclosure required by Congress for election ads that explicitly call on viewers to vote for or against candidates. There is still work to be done to improve the transparency of electioneering communications that are less explicit in their advocacy for and against candidates, but this decision still will shine a light on the funding of the most explicit of election ads.{mosads}

The law states that groups running “express advocacy” ads must publicly disclose their contributors, but the FEC wrote a rule that distorted and narrowed the requirement and thereby defeated almost all donor disclosure by non-profit groups spending money in elections. Then, in response to a 2011 rulemaking petition filed by my organization, the Campaign Legal Center (CLC), and Democracy 21, asking the FEC to fix the rule, the agency deadlocked 3-3, even though the explosion of dark money spending following Citizens United made it abundantly clear that the rule was rendering the statute meaningless. Many groups, including CLC and Citizens for Responsibility and Ethics in Washington (CREW), filed complaints with the FEC about the resulting dark money activity, and CREW sued the Commission for failure to require disclosure by Crossroads GPS.

Now, finally, the courts have ruled in favor of the disclosure that Congress mandated years ago. However, it shouldn’t take six years of administrative complaints and litigation to arrive at a point where the FEC is finally being forced to apply disclosure laws as Congress wrote them.

For years, CLC and other watchdog groups have been pushing the FEC to interpret and enforce this law as Congress intended by requiring disclosure of those who fund politically active groups – and, where that failed, by urging Congress to clarify the law. CLC and Democracy 21 filed that 2011 petition to warn the FEC that its rules were enabling corporations and labor unions to evade Congress’s disclosure requirements, without fear of sanction. And this is exactly what happened.

Since then, dark money has continued to afflict our elections. New groups have been created for the manifest purpose of obscuring the identities of their donors – many of whom do not wish to be publicly associated with candidates they support. And undisclosed outside spending has become increasingly concentrated amongst a few extremely powerful groups, enabling them to wield outsized influence behind the scenes while voters remain in the dark.

According to a new report by the nonprofit Issue One, in the post-Citizens United era, the 15 top dark money groups alone have accounted for more than $600 million in election spending. Already in 2018, at least $65.27 million in dark money has been spent. Not all of this money will have to be disclosed after yesterday’s decision, but at least the source of spending that is most clearly intended to sway votes in favor of a candidate will be made public. Of course, clever groups will seek to avoid disclosure by using thinly-veiled election ads that don’t explicitly tell viewers how to vote, or by passing funds to super PACs; nevertheless, this decision is a step in the right direction.

Moving forward, the FEC could further advance the cause of disclosure by following through on CLC’s recent legal complaints against politically active nonprofits, such as the National Rifle Association’s lobbying arm and 45 Committee. In the case of 45 Committee, CLC recently filed a complaint claiming the dark money group spent over $22 million supporting Donald Trump in the final weeks leading up to the 2016 presidential election, but failed to register as a political committee and disclose its donors, as required by law.

Until the law is enforced properly, the fight for disclosure is not over. Now that the statute’s full disclosure obligations for independent expenditures have been restored, we will be monitoring groups closely to ensure they follow the law—and the FEC, to ensure it’s enforced.

While the path forward is still difficult – in fact, the district court decision has already been appealed – today we can say that as a result of this decision, groups will have to disclose more information about those funding “express advocacy” campaign ads. It is a victory that the American people will be better informed about who is funding the ads they see before they head to the polls in November and have a clearer picture of who is trying to influence how they vote. In order to extend this victory to include all dark money, Congress should make it clear that disclosure should be applied to all electioneering communications, and the FEC should write a rule that reflects this disclosure requirement, and enforce that law rather than continuing to deadlock and thereby allow groups to continue to spend secret money in elections.

Trevor Potter (@TheTrevorPotter) is president of the Campaign Legal Center and a former chairman of the Federal Election Commission.