Demands Emerge Broadly for Reporting on Dark Money in 2016 Elections

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April 12, 2015;Politico

NYU Law School professors Robert F. Bauer and Samuel Issacharoff took to the pages of Politico’s magazine to reinforce the need, now that the 2016 election cycle is already underway with the formal presidential campaign announcements of Ted Cruz, Rand Paul, and Hillary Clinton, for continuing the pressure for donor disclosure in campaign financing. Their targets are “dark money” organizations, such as the 501(c)(4) social welfare organizations that are able to evade disclosure and attract what looks like will be, this time around, record amounts of big money contributions to organizations that are allegedly independent of the candidates.

“With the 2016 elections just over the horizon, the Koch brothers alone have announced a billion-dollar network,” they wrote, “and there is every indication that this massive spending without transparency will occur on both sides of the partisan divide, and among varying ideological camps as well.”

To make donor disclosure work, Bauer and Issacharoff called for reporting requirements that would exempt disclosure for donors of less than $2,700. “No one is ‘buying’ a candidate for public office for that figure, and the privacy interests of donors at that level or below should be protected,” they observed, probably correctly. Unlike the current laws that require disclosure connected to broadcast ads, their idea is to require disclosure of big money, regardless of what it is spent on, except they call for exempting spending on the Internet. “This democratizing medium should be generally exempted so that its creative development is not stymied by application of a regulatory model that predates the fax machine,” Bauer and Issacharoff recommended, though we aren’t quite sure how that would work—or really why big money spent on the Internet is somehow all that different from money spent on pre-Internet modes of campaigning (TV, radio, newspapers, telephones).

The movement Bauer and Issacharoff are tapping into may be small at the moment, but could pick up steam as the American public becomes disgusted at the massive amounts of money being spent on campaigns. For example, both houses of the Maryland legislature, including the Maryland state senate on a 45-to-0 vote, have passed a bill calling for disclosure of private donations to gubernatorial inauguration activities. A coalition of Democrats and moderate Republicans in Montana’s House of Representatives just passed a bill to require disclosure of donors to “dark money” organizations. Even the new Right to Rise Policy Solutions, apparently a nonprofit policy think tank related to the upcoming presidential campaign for former Florida governor Jeb Bush, may be planning the practice of disclosing its donors, according to its founder, Bill Simon, a former Walmart executive.

The trend is not only for more disclosure, but bipartisan support for more disclosure—a unanimous vote in the Maryland state senate with the approved bill going to the state’s new Republican governor Larry Hogan, the Montana bill actually a Senate bill sponsored by a Republican legislature, and a potentially dark money nonprofit associated with a Republican presidential candidate announcing its commitment to transparency.

In the Philanthropy Roundtable’s new book on foundations involved in public policy—Agenda Setting: A Wise Giver’s Guide to Influencing Public Policy, by John J. Miller and Karl Zinsmeister—the politically conservative treatise highlights in one chapter the story of Arthur and Lewis Tappan, whose philanthropy was crucial in the anti-slavery movement in the first half of the nineteenth century. Their support of the Amistad mutineers, including paying for former President John Quincy Adams to represent them in front of the U.S. Supreme Court, was certainly risky, controversial, and in many quarters, controversial. But Miller and Zinsmeister note that the Tappans owned up to their support of unpopular causes and weren’t scared away:

“Although they were not afraid to court controversy, much of the Tappans’ abolitionist philanthropy was done in secret, partly for reasons of modesty, partly out of necessity. They were early supporters of the Underground Railroad, for instance, which would have exposed them to legal recourse if done openly.”

Supporting Cruz, Paul, or Clinton for the presidency isn’t illegal and doesn’t involve anything like the risks the Tappans took. There is no modesty in big money supporting presidential candidates whose combined campaign spending, between official sources and so-called independent entities, will top $1 billion. If the Tappans were able to stand up for their beliefs on an issue that was going to take the United States into a civil war, there is nothing comparable that big donors to dark money organizations can cite as reasons for their secrecy.

The public deserves to know what big money is doing to the content of the American democratic tradition. Perhaps the big money donors to the three announced candidates—and those several more in the wings all but ready to launch their campaigns—can think about the Tappans and realize that they don’t face one iota of the risk that the Tappans did in financing the abolitionist movement. Their paltry arguments for secrecy simply don’t work when the biggest risk they face is having to explain to the public why they endorsed whomever they have endorsed for president.—Rick Cohen