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The Reach of Dark Money in American Politics

What is Dark Money?

Sounds scary, doesn’t it? To put it simply, dark money includes any donations or political spending that is provided by nonprofits that do not disclose the source or donors of the money. The source of the donations tend to be anonymous donors. They give the money to nonprofits or limited liability companies (LLCs) which provide the money to political organizations or individuals. Political Action Committees (PACs) are also known to have heavily dealt with dark money donations. This money is typically used for campaign ads or other attempts to influence elections or political institutions. For example, a candidate for Congress could receive 2 million dollars from a nonprofit organization; the donor that provided this money to the nonprofit is anonymous and voters would not be able to identify them. The secretive origins of this money lead to the secretive name of “dark money”.

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Why is Dark Money Allowed in Politics?

Well, dark money was never explicitly illegal in the United States. However, several court cases have allowed dark money organizations to thrive. These include Buckley v. Valeo (1976), FEC v. Wisconsin Right to Life, INC. (2007), and Citizens United v. FEC (2010). In Buckley v. Valeo, the Supreme Court overturned limits on political independent expenditures by individuals and total campaign expenditures. In FEC v. Wisconsin Right to Life, INC., the court decided that corporations and certain nonprofits could pay for issue ads in the 60 days before an election, as long as those ads do not explicitly advocate for a candidate. Finally, in Citizens United v. FEC, the court ruled corporations and unions can spend unlimited amounts of money on independent expenditures with the reasoning that corporations and unions had the same freedom of speech protections as individuals and that free speech included political spending. Dark money is not as evil or one-party-oriented as it is made out to be; both members of the Republican and Democratic parties use it, but both parties have members that see flaws in this system and wish to pass laws that make disclosure of donors mandatory. Unfortunately, different versions of bills like the 2012 DISCLOSE Act have failed in Congress, so dark money continues to influence elections.


To What Extent is Dark Money Used in American Politics?

According to OpenSecrets.org, these non-disclosing groups spent $308.7 million in 2012. During the three election cycles leading up to 2012, 30 percent or more of outside spending on federal elections came from dark money groups. Both the Democratic and Republican parties utilize dark money. This money was very prevalent in 2020. President Joe Biden’s 2020 campaign for president was backed by $132 million in dark money while Former President Trump’s 2020 campaign received about $22 million from dark money sources. While in this presidential election, Democrats received the vast majority of dark money, the opposite has usually been true during past federal elections. Furthermore, dark money has reached beyond federal elections: the Supreme Court.

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Party Line Dark Money Spending

Free to use from OpenSecrets.org


Dark Money’s Effect on The Supreme Court

Dark money has heavy influences in the Senate which is where Supreme Court nominees get confirmed to the Supreme Court. Senators like former Majority leader Republican Mitch McConnell have had their campaigns fueled by dark money and have fought for more dark money in politics. Senator McConnell has, arguably, had the largest impact of any Senator on the Supreme Court with his blockage of nominee Merrick Garland in 2016, his confirmation of Justice Gorsuch in 2017, his confirmation of Justice Kavanaugh in 2018, and his role in ushering the confirmation of Justice Barrett about a week before the 2020 presidential election. Senator McConnell has brilliantly fought to stop any bill similar to the 2012 DISCLOSE Act from passing, and he has fought to pass laws that do the opposite and protect the identity of anonymous donors. His impact on the Supreme Court and other federal courts has allowed conservative judges to shut down attempts to overturn the Citizens United decision. During the 2020 confirmation hearings of Justice Amy Coney Barrett, Senator Whitehouse argued that dark money has had an impact on Senate elections, independent law organizations, and advertisements for court nominees. All of these are deciding factors when it comes to who gets a spot on the Supreme Court.


Sen. Whitehouse looks at three different organizations to pinpoint the effect of dark money. First is the Federalist Society which is a nationwide organization of Conservative lawyers and jurists including six of the current members on the Supreme Court. The Federalist Society often recommends conservative lawyers and judges to Republican presidents for their nominees to the court; President Trump even asked for a list of candidates from the Federalist Society in 2016. Sen. Whitehouse also looks at the Judicial Crisis Network which mounts large public relations and advertising efforts to gain the support of conservative judicial nominees. Finally, Sen. Whitehouse discussed a group of legal organizations like Pacific Legal Foundation which bring cases to court and influence their decisions. These groups often collect amicus briefs, a brief by a party that is not involved in a case but offers the court advice, to shift court decisions. Sen. White House ties all of these organizations together through dark money.

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U.S. Senator Sheldon Whitehouse

Office of U.S. Senator Sheldon Whitehouse


The connection between these groups is evident by the fact that when lawyer Leonard Leo gave up his leadership positions at the Federalist Society, Carrie Severino took his place. Severino had previously been the head of the Judicial Crisis Network. Sen. Whitehouse explains that organizations like the Bradley Foundations and the Donor Trust Fund provide funds for these organizations using dark money. Sen. Whitehouse describes the Donor Trust Fund as a “gigantic identity scrubbing device for the right-wing.” The Washington Post has identified that these donors have given over $250 million in dark money to the scheme behind the Federalist Society, Judicial Crisis Network, and Pacific Legal Foundation. Leo, former head of the Federalist Society, has even described this effort as aimed at “remaking the nation’s courts”. The impact behind these organizations is clear. Sen. Whitehouse has reviewed about 80 Supreme Court cases that were decided 5-4, with Chief Justice John Roberts and four conservative justices on the majority, and considerable Republican donor interest. In these cases, outcomes led to either one of four things: 1) Allowing unlimited and dark money in politics 2) knocking the civil jury system down 3) weakening regulatory agencies 4) Suppressing individuals’ ability to vote. While dark money is prevalent in both the Democratic and Republican parties, dark money in the Republican party has led to a meticulously planned, decade-long plan to shift the nation's courts to the right. The combined effort of these groups has led to more conservative judges handing down more conservative opinions. This dark money has led to courts interpreting the law to allow dark money to thrive in politics and for the conservative movement to continue shaping the courts.


How Can You Help?

Much of the fight against dark money exists in litigation in courts, debate on Capitol Hill, and discussion in the Whitehouse. However, youth are not powerless. You can help stop dark money from clouding politics in numerous ways. The best way to help is to support Congressional candidates who oppose dark money. While voting for such candidates would be the best fight against dark money, youth who can not vote can best support these candidates by organizing to support them. Voicing support for anti-dark money candidates on social media is a great way to help too. Members of Congress like Representative Ocasio-Cortez push for grass-roots campaigns and ones that do not take corporate PAC money because that money could very well be dark money. It is great to support such members of Congress who support grass-roots campaigns as well. Finally, educating yourself about dark money and the going-ons of politics is the best action to create a more involved nation. Hopefully one day, solutions like passing a DISCLOSE Act in Congress or overturning Citizens United in the Supreme Court will be reached, so the donors behind such dark money are revealed.

Works Cited


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