This week, the Lever, ProPublica and the New York Times discovered the largest known political advocacy donation in American history. We exposed a reclusive billionaire’s secret transfer of $1.6bn to a political group controlled by the Republican operative Leonard Leo, who spearheaded the construction of a conservative supreme court supermajority to end abortion, block government regulations, stymie the fight against climate change and limit voting rights.
This anonymous donation – which flowed to a tax-exempt trust that was never disclosed in any public record or database – was probably completely legal.
Whether you support or abhor Leo’s crusade, we should be able to agree on one larger non-partisan principle: such enormous sums of money should not be able to influence elections, lawmakers, judicial nominations and public policy in secret. And we should not have to rely on a rare leak to learn basic campaign finance facts that should be freely available to anyone.
Unfortunately, thanks to our outdated laws, those facts are now hidden behind anonymity, shell companies and shadowy political groups. America is long overdue for an overhaul of its political disclosure laws – and news organizations in particular should be leading the charge for reform.
In the early 1970s, leaks and shoe-leather reporting by news organizations uncovered the Watergate scandal – the modern era’s foundational dark money exposé. That debacle birthed the original federal disclosure laws and a golden age of journalism. For a time, the new statutes allowed campaign finance reporting to become systematic, methodical and based on required disclosures, rather than sporadic, random and reliant on the goodwill of courageous whistleblowers.
A half-century later, however, the dark money practices of 50 years ago have again become normalized. In 2020 alone, more than $1bn worth of dark money flooded around weak disclosure rules and into America’s elections, financing Super Pacs, ad blitzes, mailers and door-knocking campaigns. As millions of votes were swayed, reporters and the public had no knowledge of the money sources, or what policies they were buying.
Heading into the 2022 election, the situation is getting worse. The two parties’ major Senate and House Super Pacs are all being funded by anonymous dark money groups that are not required to disclose their donors.
These problems aren’t unique to the campaign arena. Front groups are also shaping public policy, leaving reporters unable to tell voters who exactly is funding what. In the last few years, an anonymously funded group used post-election ads to successfully pressure lawmakers to water down landmark healthcare legislation designed to eliminate so-called “surprise” medical bills.
Similarly, Leo’s anonymously funded network spent tens of millions to boost the nomination campaigns of three conservative supreme court justices, after leading a campaign supporting Republicans’ refusal to hold a vote on Barack Obama’s 2016 high court nominee, Merrick Garland.
To be sure, news outlets can still cover the shrinking portion of the political finance system that still discloses some money flows to politicians, lobbyists and advocacy groups. And thankfully, there are occasionally disclosures like the Leo leak, which provide a fleeting glimpse into the real forces influencing sweeping policy decisions.
But for every sporadic leak, there are scores of secret donors systematically funneling ever more dark money into elections and legislative campaigns without ever being exposed – and they are reaping the rewards of corrupted public policy.
That’s the bad news. The good news is there is already a legislative blueprint for reform.
The Disclose Act, sponsored by the Democratic senator Sheldon Whitehouse, would force dark money groups to disclose any of their donors who give more than $10,000, require shell companies spending money on elections to disclose their owners, and mandate that election ads list their sponsors’ major contributors. These requirements would extend not only to election-related activity, but also to campaigns to influence governmental decisions – including judicial nominations.
A separate Whitehouse bill would additionally require donor disclosure from shadowy groups lobbying the supreme court through amicus briefs designed to tilt judicial rulings without letting the public know which billionaire or CEO’s thumb is on the scale. And other pending legislation would finally allow the Securities and Exchange Commission to require major corporations to more fully disclose their political spending.
Journalists should proudly advocate for laws like these, which allow us to tell the public what its government is doing. Our industry has done that before in defending open records laws, and we must do it now in advocating for new campaign finance disclosure rules.
In practice, that means reporters elevating the transparency issue and demanding answers from politicians about where they stand on disclosure laws – rather than ignoring or downplaying the rising tide of dark money now shaping every public policy in America.
It means newspaper editorial boards advocating for campaign finance reform.
It means media organizations lobbying for stronger disclosure laws at the federal, state and local levels.
It means the journalism industry participating in – and at times leading – this fight, rather than using objectivity as a cop-out.
This battle to update campaign finance disclosure laws and bring sunlight to the darkest of dark money already faces powerful opponents. In recent years, the US Chamber of Commerce and Koch Industries – which represent some of America’s biggest dark money spenders – have been lobbying against the Disclose Act, preventing it from advancing for more than a decade.
The Koch network recently convinced the supreme court’s conservative bloc to strike down a California law requiring non-profit dark money groups to at least disclose their major donors to state tax regulators, after spending to back some of those justices’ confirmations to the court.
Most recently, conservative groups and Republican state attorneys general have been trying to block a proposal to force companies to disclose greenhouse gas emissions by arguing that it is unlawful “compelled speech” – a preview of the argument they might use against new campaign finance transparency legislation.
Just as alarming, segments of the journalism industry itself have opposed transparency efforts. The National Association of Broadcasters (NAB) — which represents the major media outlets making huge profits off of dark money ads — tried to block a rule at the Federal Election Commission a decade ago to require TV and radio stations to disclose ad buys from political groups, arguing it would cost them advertising revenue.
The NAB has recently successfully opposed the Federal Communications Commission’s requirements that broadcasters disclose when foreign governments sponsor material. NAB is right now lobbying on the Disclose Act.
But this week’s revelations about history’s largest dark-money donation should be an alarm telling us that the status quo must change – and indeed it can change, even within the confines of the supreme court’s own precedents.
In the landmark Citizens United ruling that unleashed the modern era of big money politics, the majority noted that while it was unwilling to permit political spending restrictions, it still held that “government may regulate corporate political speech through disclaimer and disclosure requirements”.
Those requirements are so desperately needed now – for the free press to play its vital role, and for voters to make informed decisions when they go to the polls.
But the only chance it will happen is if news outlets and reporters get off the sidelines and enter the battle to secure what they need to do their jobs – and what we all need to preserve our democracy.
David Sirota is an award-winning journalist who founded the investigative news outlet the Lever
Joel Warner is the Lever’s managing editor
