By Jon Cassidy | Watchdog.org
You can find the truth about “dark money” just outside Denver, in the unincorporated neighborhood of Parker North, Colorado, home to a records management consultant named Karen Sampson.
Sampson is no shadowy billionaire political puppet master, but she got ensnared in an anti-dark money rule a few years before dark money was even a catchphrase.
When officials from nearby Parker, Colorado, tried to annex her neighborhood in 2006, she got together with a half-dozen neighbors to oppose it, mainly because they didn’t want a tax increase. They put out yard signs, went door to door, and wrote letters to the editor. They spent less than $1,000 in all.
It was the sort of informal grassroots effort you see whenever government threatens something people care about. And it’s the sort of political expression threatened by new state regulations billed as the antidote to “dark money,” the voguish and vague term for political activity conducted outside of state control. A Texas commission, for example, just approved a new dark money rule nearly identical to the one that ensnared Sampson and her neighbors.
When a political opponent sued Sampson’s group, it was their very informality got them into trouble. Colorado campaign finance law required them to register as an official political committee. As such, they were obligated to keep meticulous records of their activities, expenditures and donations, and report all of it to the government every two weeks.
The lawsuit had the intended effect, Sampson said.
“Some neighbors pulled their signs from their yards, others didn’t plant yard signs and still others refused to participate in efforts to get out the vote,” she said.
Sampson, with the backing of the Institute for Justice, sued the state to vindicate her free-speech rights. It took four years of litigation, but a federal appeals court ultimately declared the requirement in their case to be unconstitutional, because “the governmental interest in imposing those regulations is minimal, if not nonexistent, in light of the small size of the contributions.”
The Democrat-controlled Colorado Legislature doesn’t see it that way and has refused to bring state law in line with court rulings.
“I’m ashamed to say,” Sampson said, “that if I’d known we would be sued, and now knowing how absurd Colorado’s campaign finance laws are, I would think twice about getting involved in an issue ballot.”
In Colorado, the secretary of state won’t enforce a regulation the courts have deemed invalid, yet that invalid regulation is the model for a new rule in Texas that took effect in November.
Basically, every group that’s even slightly political has to register and report its finances. Rules meant for the public to keep tabs on their officials have been flipped around so officials can use them to track threats from the public.
In Colorado, any two people who spent $200, or 30 percent of their budget, on an issue appearing on a ballot had to register as a political committee and comply with the complex web of regulations meant for political pros. At least they did before the courts put a stop to it.
In Texas, it’s two people, $500, or 20 percent of the budget used for “political expenditures.” If they fail to register and report on their activities, they risk committing a felony.
Two groups already have filed federal lawsuits challenging the regulation. One of those groups, the Texas Home School Coalition, writes that its success is “inevitable,” given the legal precedents.
Either lawsuit could produce a sweeping decision with far-reaching implications because the regulations under scrutiny are hard to square with the First Amendment. For example, if your personal blog “opposes” a political candidate, the Texas Ethics Commission deems it a political advertisement and thus subject to regulation and disclosure.
Ever since the landmark 2010 Supreme Court decision in Citizens United v. Federal Elections Commission, there have been assaults across the country not just on the ruling, but on the basic American right of free speech. Regulations supposedly meant to combat secret influence by billionaires end up bedeviling ordinary citizens like Sampson.
There are at least 18 bills in statehouses nationwide meant to subject independent groups to the sort of disclosure requirements imposed on candidates.
There is also the proposal at the Federal Elections Commission to classify almost all political blogging as “advertising” subject to regulation, even when nobody’s getting paid. That means you — your Facebook page, your Tumblr, your YouTube videos.
Then there are the state agencies that shrug off the legalities and make up their own requirements — to be used by their political bosses in eliminating threats.
Newspaper publishers, activists, radio show hosts, even old-fashioned letter writers have felt the cold hand of government speech regulators in recent years.
These assaults are the logical extension of the war on “dark money” the media report so much about. This hobgoblin, dark money, is the vague yet ominous creature the media invoke in referring to private donations to nonprofit groups that have some connection to politics.
Since Citizens United lifted the ban on political speech by corporations, a number of well-known nonprofit corporations have bought their own ads.
The U.S. Chamber of Commerce, NARAL Pro-Choice America, the National Rifle Association, Focus on the Family and Human Rights Campaign are just a few of the biggest “dark money” groups out there.
Their names aren’t often mentioned in the spooky stories the media tells about shadowy industrialists buying up elections and ruining democracy, due to their obvious legitimacy.
All of the dark money groups — the well-known groups like the NRA and NARAL, and the fly-by-night organizations — spent just $173 million, or 5 percent, of the $3.4 billion spent on federal races in the 2014 election cycle, according to the Center for Responsive Politics. The percentage was the same in 2012.
That works out to a little more than half of the $330 million Americans spent on Halloween costumes last year. For their pets.
If you could separate “real” dark money groups from obviously legitimate groups, the number would be very small. But that’s just the problem. There is no meaningful legal distinction between the two. Laws aimed at “dark money” inevitably restrict fundamental political speech by advocacy groups.
And sometimes, that is just the point.
Over the next week, we’re going to explore how campaign finance law has grown to interfere with fundamental political activity most people think is protected by the Constitution. In many cases, these so-called sunshine laws cast long shadows of uncertainty over grassroots activism and journalism. In some cases, they’re used to persecute people who stand up to entrenched interests.
These laws will shape free speech, political activism and journalism in ways that few realize.