Narrow FEC guidance limits impact of court ruling on dark money in midterms

The most expensive midterm election in history will still be filled with dark money despite a recent Supreme Court ruling requiring non-profit organizations to disclose more donor information.

In September, the High Court ruled non-profit advocacy groups would be required to disclose the names of donors contributing more than $200 toward independent expenditures influencing a federal election. However, following the Oct. 15 filing deadline, it appeared organizations may have found a work-around for the millions of dollars in donations pouring in.

According to the nonpartisan Campaign Legal Center (CLC), of the 17 organizations that should have reported donors by the deadline, only four did so.

Two of those groups reported contributions from other entities that don’t disclose their donors. The remaining 13 organizations, which collectively spent millions of dollars in September, are still keeping all of their funders a secret.

Under the statute and the court’s decision, groups making independent expenditures—which are ads that expressly advocate for or against the election of candidates—must disclose all donors who gave for “political purposes” and for the purpose of furthering any of the group’s independent expenditures.

The explanations from the groups as to why they had no reportable donations varied; however, four provided the exact same explanation:

“As a matter of policy, [Majority Forward/Patriot Majority/Taking Texas to the Top/Texas Organizing Project] does not accept funds earmarked for independent expenditure activity or for other political purposes in support or opposition to federal candidates.”

Others stated they had no donations during the reporting period, which only included those received after Aug. 4 and spent after the Sept. 18 judicial ruling.

Heritage Action for America, which openly admitted it would raise money to support 12 political candidates, spent a six figure dollar amount supporting those candidates.

CLC has filed a complaint with the Federal Election Commission (FEC) challenging Heritage’s assertion that all funds spent were from their general treasury.

“The statute itself is pretty clear, you’re supposed to report all contributors who gave for political purposes. What that means in practice is another question,” said Brendan Fischer, director of federal reform at the Campaign Legal Center. “Many groups are likely anticipating that the FEC isn’t going to second-guess their assertion that they received no reportable contributions.

FEC Commissioner, Ellen L. Weintraub, a Democrat, who initially had high praise for the Supreme Court ruling, had toned down her enthusiasm after the commission issued its guidance memo earlier this month:

“A lot of people were very excited when (the case) first came out, but when you get into the weeds, one has to acknowledge that the opinion is not as broad some people had hoped.”

“I wish the decision would have been the death knell for all dark money, but (it) really didn’t go that far,” Weintraub said.

According to the Associated Press, the narrow language in the FEC memo will likely only impact 20 organizations and only applies to donations solicited for specific ads — not the broader ad campaigns that many nonprofits raised money for previously.

Expecting an agency that is unable to agree on whether or not Russian interference in the 2016 election violated U.S. law, to take meaningful action on this issue seems highly doubtful.


[The Hill] [Politico] [AP] [NPR] [Photo courtesy LA Progressive]