The campaign to allow money to be spent in the political system without a hint of its origin — the growing phenomenon known as dark money — racked up a major victory last week when a federal judge in Los Angeles issued a permanent injunction ending California Attorney General Kamala Harris’s attempt to obtain the donor list for Americans for Prosperity, the primary campaign and elections arm of the Koch brothers’ $889 million advocacy network.
The legal pushback against the attorney general’s inquiry was led by Americans for Prosperity and other advocates for undisclosed campaign cash. The Center for Competitive Politics, which litigates against restrictions on money in politics, joined the fray by filing a lawsuit against the attorney general’s request for donor information.
These days, those groups argue that guarding the identity of big political contributors is a First Amendment issue and a way to guard against “harassment” of donors — as Koch Industries’ general counsel claimed in a court filing.
But Americans for Prosperity and others now demanding campaign donor secrecy made the very opposite argument in the years before the Citizens United Supreme Court decision — supporting “full” campaign finance disclosure as a reasonable accompaniment to raising contribution limits. Now that contribution limits have been effectively eliminated, the calls for transparency have disappeared.
“They are moving the goal post,” says Stetson University College of Law professor Ciara Torres-Spelliscy, who specializes in election law. “When contribution limits were on the table, they advocated for transparency. When transparency was the little that was left after Citizens United, they shifted against transparency. It’s all Machiavellian and not particularly principled.”
In 1999, Americans for Prosperity, operating under its previous name, Citizens for a Sound Economy, issued a press release on the campaign finance proposals touted by then-presidential candidates John McCain and Bill Bradley. The release, citing Citizens for a Sound Economy fellow James C. Miller III, said reforms should include getting “rid of the limits on individual contributions” and requiring “full disclosure.” Miller also testified before Congress, declaring that lawmakers should raise the contribution limit and require “complete and accurate disclosure of all contributions.” Miller also spoke with Investor’s Business Daily, explaining that he “would reform the campaign laws” to “take all limits off of contributions, but have full disclosure. So taxpayers would know. This would be up on the web.”
In 1996, Bradley Smith, now the president of Center for Competitive Politics, appeared on the PBS NewsHour, and called for lifting campaign contributions and adding more disclosure to the system. “What we really need to do is dump some of these laws, deregulate the system, require full disclosure,” Smith said. “Now people are trying to hide their contributions. If we open up, let people contribute, those contributions come into the open, and then if the voters think it’s important, the voters can decide.”
In 2003, Smith again endorsed campaign disclosure because doing so, he said, would help reduce corruption by “exposing potential or actual conflicts of interest.”
In recent years, Smith and his group have switched sides, claiming that campaign disclosure rules pose a danger. He testified against new disclosure rules on nonprofit election advocacy groups, claiming they would encourage “individuals to harass, threaten, or financially harm a speaker or contributor to an unpopular cause.”
Asked about his apparent shift, Smith emailed The Intercept to say his “position hasn’t changed.” But, asked if he supports any proposals to disclose the new wave of post-Citizens United dark money in the election system, Smith said he “would be more likely to support changes limiting rather than expanding disclosure.”
The about-face by Smith comes as undisclosed campaign money has flooded the election system for both parties, but especially on behalf of Republican candidates. Sens. John McCain, R-Ariz., Chuck Grassley, R-Iowa, Thad Cochran, R-Miss., and Pat Roberts, R-Kans., all previously voted or spoke out in favor of disclosing campaign funds in elections in the past, but voted to block new post-Citizens United transparency reforms to disclose secret money.
James Bopp, an attorney known as the primary legal architect behind the Citizens United decision, has gone on in recent years to fight legal battles against campaign disclosure. He represented a group in court last year that filed suit to overturn Montana’s donor disclosure laws.
But even Bopp once sided with disclosure, writing for the Heritage Foundation in 1999 that campaign finance transparency is vital.
“Proposals that are aimed at opening up the process, simplifying the campaign finance rules, and relying instead on complete and prompt disclosure would enhance politicians’ political accountability to the people,” Bopp wrote. “Such proposals not only would be constitutional, but they also would reinforce the sovereignty of the people over elected officials and decrease the threat of corruption by making it more likely that perceived influence will be exposed.”
“I have not changed my position at all,” Bopp said in response to an email from The Intercept about his comments about disclosure in the past. Asked if he would support disclosure for the numerous 501c nonprofits that engage in election campaign spending, he replied that doing so would “crush them.”