Their effort is part of a multimillion-dollar advertising battle already underway over the latest seat to open on the high court. As the White House and Senate Republicans wrangle with Democrats over the release of documents in advance of confirmation hearings, which Republicans hope can begin in a matter of weeks, these groups are already blanketing the airwaves in key states, with the aim of influencing a small group of senators who will cast the decisive votes.
Demand Justice is airing ads claiming that Kavanaugh — a former Bush administration official who currently serves as a judge on the D.C. Circuit Court — will help gut the Affordable Care Act and rob women of their reproductive rights.
“We’ll still be outspent markedly, but probably 6- or 7-to-1 instead of 20-to-1 this time. That’s important,” said Brian Fallon, executive director of Demand Justice and former spokesman for the 2016 Clinton campaign. “We’re in a much better place by virtue of the fact that we’re at least mitigating the chronic disadvantage in resources that usually is the case in these fights.”
It is just the beginning of the high-stakes fight driven by nonprofits that are characterized by the Internal Revenue Service as “social welfare” organizations but criticized as “dark money” groups because they are not required to disclose their donors.
Such groups have become ubiquitous in politics since the 2010 landmark Supreme Court Citizens United decision that allowed corporations — including nonprofits that do not disclose their donors — to spend unlimited sums on campaigns.
“These are very sophisticated campaigns that target individual senators [and are] almost surgical in nature,” said Jonathan Turley, constitutional law professor at George Washington University Law School. “Most of this is ‘dark money,’ designed to evade easy identification as to donors and interest groups — and that applies on both sides.”
These nonprofits are required to spend a majority of their money on activity that doesn’t relate to elections. Since judicial nominations aren’t directly related to elections, the groups are able to spend freely — without having it count as electoral activity.
“Spending money now on issues surrounding this judicial nomination free up funds to spend on electoral activity in the fall,” said Charlie Spies, a Republican campaign finance lawyer. “Liberal groups spending $1 million on ads advocating against Kavanaugh in August frees up almost $1 million in capacity to run ads against Republicans in October.”
By far the most influential group on judicial nominations is the conservative Judicial Crisis Network, which works to fill judicial vacancies across the country, including in state supreme courts and appellate courts.
It spent $17 million opposing Obama’s nominee, D.C. Circuit Court Judge Merrick Garland, and supporting Trump’s previous pick, Supreme Court Justice Neil M. Gorsuch.
So far, it has spent $5.3 million on its pro-Kavanaugh campaign focused on states where Senate Democrats are most vulnerable in the 2018 midterms, according to the group. It is prepared to spend as much as $10 million or more.
It received $23.5 million from a separate nonprofit, the Wellspring Committee, which funds conservative causes and groups, according to Wellspring’s tax records. Most of the money Wellspring received that year came from a single $28.5 million donation — and the identity of that donor remains unknown publicly.
Carrie Severino, chief counsel and policy director of Judicial Crisis Network, said her group respects donor confidentiality, both for her organization and those on the left.
“There’s a reason we don’t ask for their donors, and we have the same obligation to protect the confidentiality of our donors, as well,” she said.
Severino declined to discuss how the organization raises money or recruits donors. A representative for the Wellspring Committee could not be reached for comment.
“This type of spending . . . makes it difficult for the public to believe that the court is some sort of independent arbiter, particularly in politically charged cases,” said Douglas Keith, counsel at the Brennan Center for Justice, which is tracking television ad spending over the Kavanaugh fight.
Another influential conservative group using money from unidentified donors is Americans for Prosperity, the political arm of the conservative Koch network. It has launched its own multimillion-dollar pro-Kavanaugh effort, running ads and mobilizing activists.
On the left, Demand Justice is funded by a fiscal sponsor called Sixteen Thirty Fund, another social welfare nonprofit. It raises unlimited amounts of money from undisclosed donors and then distributes it to dozens of groups working on progressive causes. Demand Justice views Sixteen Thirty Fund as comparable to Wellspring Committee on the right.
Fiscal sponsorships allow nonprofits to support new projects that are gearing up and don’t have the capacity to handle their own legal or personnel matters. Most often, the arrangement is used to help start-ups or community projects, such as art programs or urban gardens, kick into gear.
“The law allows donors the right to remain anonymous, and the Sixteen Thirty Fund leaves it up to individual donors to determine whether they want to disclose that information,” Sixteen Thirty Fund said in a statement.
Demand Justice launched in May. Two months later, it was thrust into the Supreme Court fight.
“Our primary goal is not to just sit around and wait for the next confirmation fight but to build muscle memory on the left and capacity-building so that there’s more of an attentiveness on the issue of the courts in a way that already exists on the right,” Fallon said.