For most folks, October signals the kick-off of fall and gumbo weather, college football, Halloween decorating and pumpkin spice-everything. For politics junkies, it is the beginning of campaign advertising season. Other states have endured primary election ads for months. But in Louisiana, thanks to our jungle primary system, our election season is just getting started in full force. At a minimum, on Nov. 6, we’ll all be voting on our U.S. House representative, secretary of state, six proposed state constitutional amendments, whether to legalize fantasy sports betting and myriad local issues. However, as those ads start appearing via our mailboxes, newspapers, televisions, radios and social media apps, we’re left wondering, "Who’s paying for all of this?"
Before 2010, it was relatively easy to find information on who was behind the funding for particular political candidates. Since then, however, the Citizens United v. FEC decision handed down by the U.S. Supreme Court has complicated campaign funding disclosures. Direct donations made to the campaigns of candidates running for public office are still regulated for both federal and state offices and are a matter of public record. However, there are numerous options for contributors to funnel money via “dark money” organizations in support of candidates without their names ever attached to their contributions.
Dark money is not a term of condemnation but instead refers to the inability to trace the money’s source. The public cannot find out who contributed; hence, we’re in the dark. There are two common sources for dark money contributions to political issues and candidates, and both are nonprofit organizations known by their tax code designations. Social welfare organizations, or 501(c)(4)s, are allowed to contribute to campaigns. Historically these have been organizations like volunteer fire departments and the VFW, but recently they have also come to cover groups like Crossroads GPS, run by Karl Rove. Another dark money outlet is a 501(c)(6) group, such as a local chamber of commerce, which can pursue campaign activities without having to disclose donors.
Both of these groups have been able to take contributions then spend those funds in support of political campaigns.
While dark money spending has gotten the most significant attention at the national level, these organizations are poised to have considerable influence at the state and especially local levels.
While dark money spending has gotten the most significant attention at the national level, these organizations are poised to have considerable influence at the state and especially local levels. With U.S. Congressional races ranging from approximately $500,000 per House of Representatives candidate to $1.5 million for Senate candidates, organizations have to invest heavily to sway federal election outcomes. At the state and local level, though, spending only a few thousand dollars opposing or promoting a local candidate can influence the result of a race.
Some local governments have attempted to take matters into their own hands. In March 2018, Tempe, Az., successfully amended its local charter to ban dark money in local elections, with 91 percent of voters favoring the prohibition. Only one month later, however, the Arizona state Legislature passed a law prohibiting local governments from requiring political nonprofits to disclose donors, effectively overturning Tempe’s dark money ban.
Because local governments have primary control over areas like utilities and education, these are frequent targets for dark money projects. According to a Brennan Center report published in 2016, dark money has taken off in local elections explicitly targeting these policy areas. For example, in Arizona utility commission elections in 2014, $3.2 million was spent on dark money ads, 50 times the amount of money spent on the same races in 2012. At stake in that race were policies that promoted energy efficiency by encouraging homeowners to use solar panels. Similarly, in Arkansas, a new wind energy project has met dark money opposition. Education has brought in even more spending. Last year in Denver, Colo., for instance, more than $1.5 million was spent by outside groups on local school board races.
In Lafayette, an April 2017 proposal was defeated for a half-cent sales tax increase to replace temporary classrooms with permanent structures. Funding for direct mailers and videos in opposition was provided by the organization Policies for Louisiana’s Future, though information on financial contributors was unavailable. Similarly, Citizens for a New Louisiana, primarily through its companion Facebook page Lafayette Citizens Against Taxes, successfully opposed the Lafayette Public Library millage renewal in April 2018, again, with donor information unavailable.
Political campaign contributions are considered free speech under Citizens United and previous court decisions. As of Sept. 18, 2018, however, the Supreme Court let stand a lower court decision to require these politically active nonprofits to disclose the names of any donors of $200 or more if the organization spends money to support or oppose specific candidates. For proponents of greater transparency in campaign finance, this is a rare victory. Ultimately, political nonprofits may find other avenues to route donations to support political campaigns without disclosing their donors, but for now, voters will have greater access to campaign funding information.
There’s a long history in America of political opinions expressed under anonymity.
There’s a long history in America of political opinions expressed under anonymity. In the ratification debates over whether to adopt the proposed Constitution of 1787, John Jay, James Madison and Alexander Hamilton published the Federalist Papers in support of ratification under the pseudonym Publius. Anti-Federalist columnists used creative monikers such as Brutus, Cato and Federal Farmer to resist ratification. This tradition of political commentary continues as protected speech to this day via anonymous Twitter accounts.
By contrast, matters of voting were public, including casting votes for candidates. Only in the late 19th century was the secret ballot widely adopted throughout America. There are good reasons to preserve anonymous political conversations, as that has been a refuge for everything from high-minded political debate to lower-brow political satire for centuries. Unlike political commentary, however, dark money means the public is unable to know who is behind contributions and hence is unable to identify who candidates might be beholden to once in office. Anonymous campaign funding fuels a political system that breeds secrecy, corruption and mistrust, which is something we can’t afford.