Dark Money: Our Democracy Sold to the Highest Bidder, Anonymously, and You Get the Bill

By Al Timke

Jane Mayer wrote a book entitled “Dark Money” (https://goo.gl/mguzja) that goes into great detail about the way rich individuals and large corporations legally mold local, state and national public policy. The book documents the ways really big money dominates American politics. (The book has now been made available as a free pdf file at https://goo.gl/YDV2eK. Read it!) On POV, PBS recently aired a film of the same name, directed and produced by Kimberly Reed, that illustrates !how this works in day-to-day American politics. (View at https://www.pbs.org/pov/darkmoney/video/darkmoney/)

Especially since the 2010 “Citizens United” Supreme Court decision, unlimited amounts of money can be spent in support of pollitical candidates and on lobbying without the donors being disclosed, even if they are foreign donors.

To begin with, the Supreme Court decided in Citizens United that organizations created through provisions of U.S. and state law have the same constitutional rights as human beings. Although they are artificial legal entities, they have rights, the argument goes, that go above and beyond the government-issued charter that created them, including the right to free speech. (Look for that in any organization’s charter.) This was held even though governments rightly have the authority to revoke the charters the governments issued and they don’t (as yet) have the authority to revoke our “charters” as human beings.

Also, money was equated with free speech, so a limit on spending was held to be a limit on an organization’s free speech. Following this logic, the super-wealthy get to have a lot more free speech than the rest of us. You know, people like our “president,” and his gold-plated cabinet officers, not to menton all of their friends and business associates. You might even suspect this had something to do with the giant tax breaks congress recently passed for the people on the top rung of the income ladder. You think? No wonder they are allowed to peddle their influence anonymously.

To make it worse, this is often done through 501(c)4 public interest “charitable,” “social welfare” organizations (e.g., think tanks like the Koch brothers’ Americans for Prosperity. That means donations to these organizations are tax deductible.

By the time of the 2012 mid-term elections, the Kochs had “….. come up with a new and even cleverer way of masking the money. Rather than simply directing the funds through the maze of secretive nonprofit charities and social welfare groups that they had used during the 2010 campaign, they now established a more efficient method. They pooled much of the cash first in a form of nonprofit corporation that the tax code defined as a 501(c)(6), or a “business league.” The advantage of this umbrella organization, which they named the Association for American Innovation (AAI), was that donations to it could be classified as “membership dues” and to some extent get deducted as business expenses. As with contributions to a 501(c)(4), the law protected the donors’ anonymity. But as a business league, it fell outside the charitable trust purview of state attorneys general, further safeguarding the secrecy.” (Jane Mayer, “Dark Money”)

Either way, way that the rich can avoid paying their fair share of taxes, passing that burden on to the rest of us. We, in effect, subsidize political activity that is not in our interest.

With the confirmation of Brett Kavanaugh to a lifetime seat on the Supreme Court and the current administration busily packing the lower courts with conservative judges, reversing the effects of Citizens United through the courts will be an uphill slog.

But there are alternatives, and the work has begun. One examaple is the initiative of Move to Amend. (https://movetoamend.org/) They have proposed a constitutional amendment that would overturn Citizens United. It was introduced in the U.S. House of Representatives as House Joint Resolution 48 on January 30, 2017. Here is the full text:

House Joint Resolution 48

“Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

Section 2. [Money is Not Free Speech]

Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.

Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.”

Constitutional amendments can take years, given the intentional difficulty the founders built into the process, but the 26th Amendment – granting 18-year-olds the right to vote – took only three months and eight days. We can make it happen! Do your congressional representatives support the amendment, or have they already cashed the check?

In the more immediate future, we can push for legislation like the Montana bill mentioned in PBS’s Dark Money that require disclosure of donor identities.