Over the weekend, the New York Times published a sobering interview with the head of the Federal Election Commission, who confirmed that she had largely given up on the agency playing a meaningful role in restraining fundraising and spending abuses in the 2016 campaign.
The commissioners are deadlocked, FEC chair Ann Ravel said, because Republican members of the commission think the FEC should exercise less robust oversight, meaning the agency has become “worse than dysfunctional” at a time when outside money is poised to play an even larger role than it did in the last two cycles.
There are a number of areas where this could matter — from oversight of candidates who are raising money while not “officially” declaring, to how to treat various types of advertisements. I wanted to focus on this particular problem identified by Commissioner Ravel — the “dark money” problem:
She said she was particularly frustrated that Republican commissioners would not support cases against four nonprofit groups — including Crossroads GPS, founded by Karl Rove — accused of improperly using their tax-exempt status for massive and well-financed political campaigns.
A surge in this so-called “dark money” in politics — hundreds of millions of dollars raised by nonprofits, trade associations and other groups that can keep their donations secret — has alarmed campaign-finance reformers who are pushing to make such funding public.
I followed up in a phone interview with Ravel today, and she confirmed that she was referring to cases against four big spending outside groups — all of them Republican or conservative. In these cases, some on the FEC had previously determined there is reason to believe the groups might be functioning more as “political committees” under the Federal Election Campaign Act — meaning their “major purpose” is the “nomination or election of a candidate.” That would mean that under the law, they should register as political committees, which would require donor disclosure.
In all four cases, FEC chair Ravel and other commissioners had wanted the agency to investigate further. The facts involving these cases can be found in Ravel’s statements about the groups: Crossroads GPS, Americans for Job Security, the American Action Network, and the American Future Fund.
These are the cases that Ravel was referring to when she told the New York Times that Republican commissioners would not agree to investigate.
“The impact of the failure to pursue them will be that the public isn’t going to get the disclosure that it is entitled to,” Ravel told me. “This is just about investigating, not making a final determination. It’s about saying that, from the available information, it appears that these are in fact political committees and need to register with the FEC and disclose their donors.”
But it looks like that isn’t going to happen anytime soon.
According to the Center for Responsive Politics, so-called dark money groups spent more than $310 million in the 2012 election. And election law expert Rick Hasen tells me that we could now be looking at even more than that this time around:
“If the FEC continues to deadlock on key issues involving who has to register as a political committee — and I have every expectation that it will — then we are likely to see an acceleration of the trend we saw in 2012: more groups (primarily but not only on the Republican side) spending tens of millions of dollars to influence the outcome of federal elections without public disclosure of their donors. This increases the power of unaccountable money, and gives the wealthy even more influence over the outcome of elections and public policy than they have now.”
To be clear, this is not to be confused with the activities of Super PACs, which disclose donors and are lining up on both sides, or with reports that donors like Sheldon Adelson and the Koch brothers are looking to spend enormous sums on the Republican side and donors like Tom Steyer are doing the same for Democrats. This is undisclosed money on top of all of that cash.
Hillary Clinton obviously has her own issues involving transparency and money in politics, as news organizations are digging into donations given to the Clinton Foundation, many of which remain undisclosed. But Clinton has now suggested that dark money should be an issue in the 2016 campaign, claiming she could support a Constitutional amendment to get “unaccountable money” out of politics.
That may not be a very good idea in and of itself, as Hasen has explained elsewhere. But perhaps the confluence of multiple factors — attention to the Clinton Foundation; the increasing activity of people named Koch and Adelson and Steyer; the likelihood of still more dark money — could focus a bit more attention on the role of money in politics than in previous cycles. Yes, it may be that campaign finance won’t motivate voters in the slightest. But that doesn’t mean it isn’t important. And the tide of dark money, in particular, may be rising.