It’s a brilliant misnomer, “dark money,” the sort of thing you’d expect from the consultant Frank Luntz, if Luntz were a Democrat. The term is a work of semiotic genius, tapping into fears so powerful they manage to convince Americans that free speech isn’t such a good idea after all. It’s flagrantly pejorative, but respectable newspapers use it anyway. Reporters rarely question transparency, of course. This sort of transparency, however, is starting to look more like the Inquisition.
The common alternative term, “outside spending,” is better, but only because it’s so unintentionally revealing of the proprietary attitude that politicians hold toward their offices. They do the talking; we get to press the red button or the blue one. The rightful course of political speech is mudslinging depravity funded by official accounts. The rest of us are outsiders, presumed suspect, and any views we might advertise about Obamacare or collective bargaining should be seen as part of a plot by usurping billionaires.
So the media call it “dark money,” never stopping to consider that the reason they lack a decent noun is that they’re describing something that isn’t quite real. Instead, dark money is an entire category of spending, bordered by only vague notions.
The first border involves electioneering and campaign finance, politics carried out under state control, all the things you can’t say about public issues and figures without first consulting a lawyer and hiring an accountant. This border is vague — “a line drawn in the sand on a windy day,” as the Supreme Court has put it more than once — but it’s real enough. Use a couple of magic words and pass one three-pronged test or another and you’ll find yourself in front of the Federal Election Commission. This is the border that gets all the attention from journalists, who worry about sinister operatives working just over the line, mujahideen among the civilians.
It’s the other border, however, that should concern the rest of us. The problem is that there is no reliable line separating dark money from everyday talk about politics. A definition many states are settling on in some version is that two or more people plus some money equals a political group that needs to disclose its affairs. So laws touted as the antidote to billionaire influence end up ensnaring common citizens. You might say they’re meant to. That’s why the states are setting such low cutoffs: any two people who collect $500 or $200 or even expect a single political dollar had better register and report, or face fines and even felonies.
Under the new rules, you’d have to revise that sappy Margaret Mead quote beloved of undergrad activists about never doubting “that a small group of thoughtful, committed citizens can change the world” to include something about registration requirements. Hell, under these rules, Occupy Wall Street probably counts as dark money.
There is no proper boundary for dark money because there is no end to political speech. And, like anything else, political speech can be seen in financial terms. You could be sitting alone in your room posting your thoughts on abortion to Facebook, and some regulator might see that as dark money at work. It sounds fanciful, sure, until you talk to Diana Hsieh.
Hsieh dared to post an essay on abortion to Facebook that included a sentence about a measure on the ballot. She was fined by the state of Colorado for missing one of the endless reporting deadlines. As the theory went, she had a co-author, and she accepted a few donations, so she had to report her political activity to the state. Federal courts ruled the requirement constitutionally “invalid,” but the Democrats who’ve been running the Colorado legislature refuse to amend the law.
Some states don’t even bother with the money requirement. In 2011, Dina Galassini of Arizona invited twenty-three friends to join her on a public street to wave signs against a bond issue. A week later, she got a cease-and-desist letter from city officials telling her that this sort of thing wasn’t permissible unless she registered with the state as a political action committee, and followed onerous recordkeeping and reporting requirements. A federal court struck down Arizona’s definition earlier this month.
By one count, there are eighteen bills pending in state legislatures to regulate dark money. In October, Ann Ravel, vice chair of the FEC, wrote that the commission had “turned a blind eye to the Internet’s growing force in the political arena” for too long, and that it was time to end exemptions for “certain types of Internet communications from campaign finance regulations.” What Ravel proposes is to treat freely provided Internet content as political advertising subject to regulation; in her view, you don’t even have to spend money to qualify as dark money. Of course, without that distinction, your blog, your independent newspaper, and your Facebook page are all subject to regulation, too. (If you want more examples, see a six-part series I’ve got running at Watchdog.org this week.)
When Ravel was a regulator in California, she tried unsuccessfully to require everyone who blogged about state politics, even those outside the state, to disclose their personal finances. For these so-called reformers, it’s not enough to regulate money donated to a candidate. If you believe the problem is that “sham issue ads” are influencing elections, then you need full disclosure from every group engaged in issue discussion of any sort. If the reformers manage to shut down super PACs, they’ll target nonprofit think tanks next, and any other dissenting political groups organized as nonprofit corporations. The Internal Revenue Service already started in on Tea Party groups, of course. That was no aberration. Lois Lerner came from the FEC. She was just jumping the gun.
As long as there is privacy in politics, even way out at the margins, such as with some home school coalition that mails out endorsements by newsletter, then the progressives will call it a hiding place for subversive elements and dark money. This is why their movement is coming to resemble the Inquisition.
The first victims of the Inquisition were the heretic Waldensians, proto-Protestants who insisted on Biblical primacy and rejected the supremacy of the Pope and his priestly hierarchy. Much the same, the new heretics are those groups who insist on Constitutional primacy and reject presumptuous authorities and their self-serving doctrines written in strange tongues.
The Center for Competitive Politics, along with the Institute for Justice, is one of the leading national advocates for the heretics, challenging state authority to go rummaging through the papers and donation records of private associations that have little or nothing to do with the campaigns of elected officials. So it’s fitting that California Attorney General Kamala Harris, on no more textual authority than Torquemada had in the Bible, is demanding that CCP turn over donor records filed in confidence with the Internal Revenue Service. Federal law specifically prohibits state authorities from accessing the 501(c)(3) donor records kept by the IRS, but Harris is demanding them anyway from CCP and Americans for Prosperity, one of the free market advocacy groups associated with Charles and David Koch.
In this, Harris closely resembles John Patterson, the attorney general of Alabama in the late ’50s who fought the National Association for the Advancement of Colored People for more than eight years with the support of the state’s courts, who agreed this “foreign corporation” was doing “irreparable damage” to the state. Patterson demanded that the NAACP turn over “charters in Alabama, membership lists, names of persons who had contributed money in the past year, records of property ownership, bank statements, and correspondence dealing with civil rights activities.”
The NAACP turned over most of it, but refused to give up the names of its members. Thurgood Marshall, then counsel to the NAACP, had to go the Supreme Court four times over eight years to get compliance out of Alabama. The high court, however, was unanimous that loss of privacy would have a “chilling effect” that would “induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure,” such as “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
In these cases, Harris and her cohort argue that there’s no evidence that anybody will face harassment or reprisal. But in AFP’s case, her argument is ridiculous. The Koch brothers are at the center of a campaign of vilification by association, the biggest and most vile such campaign that I’ve ever seen. There is now a whole subgenre of shoddy journalism dedicated to the proposition that any group within six degrees of separation from the brothers must somehow be suspect. All this calumny over “dark money networks” demonstrates exactly why donors are so interested in maintaining their privacy, and why the Supreme Court may soon have to revindicate that right.
For thirty years, it was settled law that issue advocacy, unlike “express advocacy” of a candidate, was constitutionally protected speech; then Chief Justice John Roberts inserted a fussy little footnote into a 2007 ruling calling the venerable distinction a mere “intermediate step of statutory construction.” It was a technically accurate but wildly misleading way to describe the animating principle of Buckley v. Valeo (1976), and it was all a few lower courts needed to decide that states now had the authority to demand the donor rolls of national organizations that speak out on state ballot issues.
Then, in Citizens United, Roberts did it again, dropping this line with no explanation: “Disclosure is the less-restrictive alternative to more comprehensive speech regulations.” The fact that the phrase is a tautology is just one clue that it was unconsidered. More importantly: who should have to disclose what and when? As you might expect, some liberal lower courts are treating the phrase as a magic wand, unlocking whatever any official wants to know.
I hope Roberts thinks the matter through, and soon, or we’re going to end up with the deep-pocketed players running their operations through for-profit corporations, just so that they can speak freely beyond the grasp of the inquisitors.
Meanwhile, the Galassinis and Hsiehs out there are overshadowed by uncertainty just for exercising their basic rights. As it stands, state regulators are not yet big enough or corrupt enough to menace everyone who speaks out. Your tweets do not threaten the powers that be — at least until you start getting results. If you’re like Michael Quinn Sullivan, a Texas conservative whose legislative scorecard has embarrassed the RINOs running the statehouse and cost them dearly, you’ll find that just about anything you say, tweet or email, is a potential violation of lobbying or campaign law. For the last three years, a state commission controlled by political appointees has been hounding Sullivan under evolving legal theories about his scorecard: it’s illegal lobbying; it’s illegal campaigning; it’s an illegal Mexican cockfight ring. The problem with the law in Texas and many other states is that it’s broad enough to allow for a criminal interpretation of just about any combination of money and influence; it’s a standing invitation to abuse of power.
In the end, the courts will likely uphold Sullivan’s speech rights and reject the politically motivated rulings of the commission, but a favorable court verdict after years of harassment is beside the point in these cases, as Noam Chomsky of all people recognized.
“Surely it is clear that those who have the power to impose their interpretation of legitimacy will so construct and construe the legal system as to permit them to root out their enemies,” Chomsky wrote in 1973. “Judicial persecution serves quite well to immobilize people who are a nuisance to the state, and to destroy organizations with limited resources or to condemn them to ineffectiveness. The hours and dollars devoted to legal defense are not spent in education, organization, and positive action. The government rarely loses a political trial, whatever the verdict of the courts, as specialists in thought control are no doubt well aware.”