There is an answer to the campaign finance quagmire caused by dark money, should our Legislature choose to implement it. What’s the quagmire? Some spending for candidates or issues are done without disclosure. So, we don’t always know who is supporting whom or what. Here’s the scoop.
According to Wikipedia, 501©(4) (social welfare), 501©(5) (unions), and 501©(6) (trade association) groups are not required to disclose donors. That means such organizations can receive unlimited donations from corporations, individuals and/or unions without revealing where the money came from.
Now, couple this with the Citizens United decision (Citizens United v. Federal Election Commission, 2010) which held that the free speech clause of the First Amendment prohibits government from restricting independent expenditures by corporations, nonprofits, labor unions, or other associations, and you have an innovative way for special interests with access to big money to direct political contributions without disclosure.
Specifically, the Citizens United decision allows spending of unlimited amounts on elections giving rise to funding today’s super PACs (political action committees). Those groups advocate on behalf of candidates, but do not affiliate or coordinate with a candidate’s campaign.
Some support the Citizens United decision arguing that organizations have first amendment rights as individuals. Others oppose it arguing that it gives special interests even more power in the process.
Some, like me, support both arguments.
If an individual has rights to free speech, then banding together as a labor union or corporation shouldn’t restrict that right. Further, neither should have an advantage over the other. A labor union shouldn’t be allowed unfettered free speech while a corporation is muzzled and vice versa. So, viewed as two equal and opposing forces, then taking off all restrictions is a reasonable solution.
However, when any organized special interest group is viewed versus individuals like you and me, then I’d argue they can have too much say in the political and legislative process while we can have too little.
This is where Montana comes into play.
According to Montana Public Radio, the Montana Legislature passed the Disclose Act in 2015 amid concerns of the role that so-called dark money groups played in elections since the Supreme Court’s Citizens United decision. The law requires more disclosure of political committees’ contributors and spending, adds more reporting deadlines and restricts coordination between candidates and outside groups.
In a lawsuit challenging the act, a district judge ruled that, although Citizens United allowed unlimited corporate spending, and although disclosure requirements burdened the ability to speak, they were constitutional because they didn’t prevent anyone from speaking.
Then, this February, the appeal on this case was declined by the Supreme Court. Fact is, they declined without comment. That leaves the lower court’s decision supporting the law standing.
And, thus, other states may emulate it to combat dark money.
Well, that’s Montana. But it will never happen in West Virginia, right?
In 2018, CNN reported, “A pair of mysterious pop-up super PACs ... spent more than $3 million in hopes of swaying West Virginia’s GOP Senate primary while keeping their donor lists hidden from voters until after the election.”
Both the Mountain Families PAC and the Duty & Country PAC switched their Federal Elections Commission reporting dates to after the primary, according to the report. That rendered the information useless to primary voters, even though the Mountain Family PAC spent more than $1.3 million against former coal executive Don Blankenship.
Who was behind the super PAC? Democrats? No. Politico reported the commercials were overseen by firms that worked closely with the Senate Leadership Fund, a super PAC aligned with Majority Leader Mitch McConnell. They were produced by a GOP ad-making firm and were placed by a Republican media buyer. Yet, no disclosures were made.
So, whether one supported or opposed Don Blankenship, and I opposed him, the point is any candidate or issue may be supported or opposed by unknown dark money. Shouldn’t we know? Surely, Republicans and Democrats can work together and correct this.