“Dark money” is a term used to describe political spending by groups that are not required to disclose their donors. Most often it refers to groups designated by the IRS as 501(c) organizations — businesses, issue advocacy groups, unions, civic and trade organizations (including many nonprofits) which are not allowed to directly contribute to a candidate or campaign, but are allowed to spend money to educate or advocate about issues related to politics or to provide information about where candidates stand on certain issues. (Transparency USA is a 501(c)(3) organization because we provide information and education to the public concerning the money in politics.)

So-called “dark money” is used by both the left and the right. Although historically more dark money has flowed to conservative causes, in 2018, left-leaning dark money groups outspent those on the right. According to IssueOne.org, which advocates against dark money, the 2018 election cycle saw 54 percent of dark money come from liberal groups, 31 percent from conservative groups, and the remaining 15 percent from non-partisan groups.

So Why Not Disclose?

“Full disclosure of all money in politics.” There have been many calls for this kind of transparency lately. And it sounds great — until you take a closer look.

Why are these groups allowed to keep the names of their donors private? Our nation boasts a long history of private political activity, going all the way back to the then-anonymous “Common Sense” pamphlets which encouraged the Revolution. But the legal protection for private political activity was confirmed in the 1958 United States Supreme Court decision NAACP v. Alabama. The Attorney General of Alabama sued the National Association for the Advancement of Colored People (NAACP) seeking to end its activities in Alabama, claiming those activities related to the Montgomery bus boycott and their legal assistance to black students seeking admission to state universities was “… causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama…” Among other things, Alabama demanded the NAACP turn over the names and addresses of its “agents” and “members.” The NAACP refused for fear that their members would suffer reprisals and persecution. In a unanimous decision, the Supreme Court declared that the First Amendment right to freedom of speech and freedom of association as well as the Fourteenth Amendment’s due process clause allowed the NAACP to protect the names of its members.

Even when the government promises to collect donor names and keep them private, there’s plenty of precedent for donor getting leaked. The number of situations where that good faith has been broken is growing — impacting the lives and livelihoods of the supposedly anonymous donors.

In 2008, the Los Angeles Times published the names and employer information of donors to a group which promoted the traditional definition of marriage. Many of the individuals on the list were subsequently blacklisted, boycotted, or even lost their job.

In 2015, then California Attorney General Kamala Harris demanded that nonprofits submit the names of their donors. Not long after, those names were posted online, allegedly by accident.

During the Obama administration, Lois Lerner used her powers as Director of the IRS to systematically harass and intimidate tea party groups and their members.

But what about vote-buying?

The courts have tried to strike a balance between preventing inappropriate financial influence on lawmakers and protecting the rights of citizens to participate in the political process without threat of intimidation.  

Candidates’ campaigns and their related political action committees (PACs) are required by state and federal laws to disclose the identities and dates of all contributors giving $50 or more. Even so-called Super PACs, which are not allowed to directly coordinate with campaigns, must reveal their donors. Courts have determined these disclosures are necessary to prevent the appearance (or reality) of donors buying votes.

On the other hand, groups which advocate for or against political issues such as Planned Parenthood, the Texas Medical Association, Texans for Fiscal Responsibility, or the Texas American Federation of Teachers Union are not required to disclose their donors. Courts have acknowledged that the identities of donors to private organizations must be constitutionally protected against forced disclosure if the disclosure could have any damaging effect on membership, such as boycotts or harassment.

These protections are under fire.

The first piece of legislation filed in Washington this year, U.S. House Resolution 1 (HR 1) greatly increases reporting burdens and disclosure requirements related to political speech and donations. Under this ambitious bill, any speech that even mentions a candidate — and the money that facilitated the speech — could potentially be regulated. And that includes individual speech on the internet. The bill — primarily supported by Democrats — passed in the House on March 8. While it is not expected to be given a vote in the Republican-controlled Senate, citizens should expect more state and federal attempts to curb so-called dark money.

Bottom Line:

Too often, calls for “transparency” are nothing more than an attempt to harass and silence donors who hold opposing views. For the same reason that our votes are private, our political associations and donations should remain private. If citizens fear their names, employers, or addresses will be made public and thereby put on the radar of their political enemies, they are likely to stay quiet and avoid political participation.

Transparency is the obligation of the government. Privacy is the right of the citizen.

In order to hold our representative government accountable, citizens should have the right to know exactly how and where government is spending money. Citizens, on the other hand, should be able to speak freely (whether by voting, speaking out on an issue, or giving to a group which advocates for their beliefs) without fear of reprisal.

We care deeply about transparency — it’s the name of our organization, after all. So it may seem surprising that we aren’t advocating for the exposure of dark money. But transparency should be applied to the government, not forced on private citizens. We respect the right to privacy for citizens and groups who choose to vote, donate, and speak anonymously.

When it comes to the money that is required to be publicly disclosed, however, that data should be readily accessible to everyone — not just political insiders. Whether you believe that there should be more or less disclosure about money given to political causes, you should still have the same level of access to all currently available information. That’s exactly why we created Transparency Texas — so you can easily search all campaign contributions and expenditures and find the answers you need about the money in Texas politics.