Although the term “dark money” sounds ominous and unsavory, it’s just a misleading neologism adopted by activist journalists to make completely legal contributions to political causes they disagree with sound creepy and illegitimate. It’s become dogma among journalists to treat “dark money” as an attack on democracy. It’s not.
The use of the phrase “dark money” reminds me of words like “loophole,” which, in its new political parlance, means “any act, although wholly legitimate, that Democrats have yet to figure out how to regulate or tax.” It’s a rhetorical shortcut meant to intimate wrongdoing.
When Donald Trump named Matthew Whitaker as acting attorney general, for example, CNN warned its readers that the man had once headed a “conservative group funded by dark money.” The nonprofit Foundation for Accountability and Civic Trust, The Washington Post explained, had both “obscure roots” and very rich “undisclosed funders.”
While there might be plenty of good reasons to oppose Whitaker, the Foundation for Accountability and Civic Trust sounds exactly like one of hundreds of groups that litter Washington. There is nothing unique about the existence of an organization funded by private donors who, as far as we know, filed all its proper paperwork with IRS and broke no laws.
Or put it this way: The Foundation for Accountability and Civic Trust is funded by “dark money” in the same way that “Demand Justice,” a group headed by former Hillary Clinton and Barack Obama aides—which dropped millions of dollars smearing Brett Kavanaugh during the Supreme Court confirmation fight—is funded by “dark money”; or in the same way that “The State Engagement Fund,” a group associated with billionaire hedge fund manager Tom Steyer, is also funded by dark money. Whitaker was paid in the same “dark money” currency that John Podesta, or dozens of other Clinton or Obama advocates and appointees, had have been paid.
The expectation that private citizens have a responsibility to publicly attach their names to every political donation (especially if they’re conservatives) is an invented one. Then again, if you follow big media outlets, you might be under the impressions that “dark money” is almost exclusively a right-wing funding mechanism. Take, for instance, the newest target of The Center for Responsive Politics, whose findings on “dark money” are constantly being uncritically regurgitated by media.
Amazing find by @andrewperezdc: 1st tax return for Federalist Society president Leonard Leo’s BH Fund—which is funded by a $24.3M secret donor—reveals new nonprofit in secretive dark money network tied to $1M Trump inauguration mystery donation. Background:https://t.co/CwTC8Fwkoh pic.twitter.com/qOgUpZ5QwC
— Anna Massoglia (@annalecta) December 5, 2018
“Secret,” as you may have noticed, is the pivotal word in this story about the furtive and mysterious efforts of the super low-profile Federalist Society (no relation to this publication).
The Center for Responsive Politics story would be amazing if there were ever any expectation of transparency to begin with, and somehow donors thwarted the law. It might even be “amazing” if The Federalist Society didn’t have an easily accessible website explaining all of its positions, goals, and history. Then again, anyone with even a slight acquaintance with contemporary politics or constitutional disputes has heard of the organization.
It isn’t at all amazing, though, that the same donors who support the idea of more originalist jurists on the Supreme Court might also support an administration disposed to nominating them. In fact, on the right, the prospects of more Federalist Society-approved justices were perhaps the most talked about policy concern of the entire 2016 election. It was hardly a secret. It’s the very point of The Federalist Society.
Now, if some rich donors are interested in championing strict constructionism—like the wealthy donors who champion thousands of liberal groups that enjoy non-disclosure status—that’s great news for “democracy.” I’m sure millions of their less fortunate fellow conservatives appreciate the help.
It seems probable, too, that many of these wealthy Americans would avoid contributing to political causes if they had to deal with ugly public attacks on their businesses and families. That is the point, I imagine, of the hysterics over “dark money.” Progressive groups have become quite adept at destroying the lives of those who back causes they dislike. The mob coming after Mozilla CEO Brendan Eich’s job comes to mind, but he’s not alone. The threat of such attacks is intimidating enough.
“Anonymity is a shield from the tyranny of the majority,” the 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission famously noted, it “exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.”
Not every Internet troll is “Publius,” of course, but that doesn’t change the principle.
When the Citizens United decision affirmed that the right of free expression is not limited to groups favored by progressives, “dark money” quickly became a major liberal concern. They act as if we live in a Gilded Age, and anonymous funding is perfunctorily treated as one of the most corrosive elements in contemporary politics. If it’s not the fat cats, it’s the Russians who have snatched your free will.
Now, it’s true that the massive amounts of money spent on campaigns and partisan advocacy reflects the unfortunate reality of a far-too powerful and pervasive government. So the last thing we need to do is expand its power to regulate more speech. The fact that groups of Americans are compelled to report to the IRS before engaging in political activity is bad enough. And those who argue that anonymous speech is an attack on “democracy” only aim to inhibit and control the political speech they don’t like.