OPINION: Dark money is a cancer on Congress — but it’s curable

Democratic Representative Derek Kilmer of Washington had a decade of state elective office under his belt when he arrived in Congress in 2013, so he knew real change could take time.

He just didn’t foresee something as seemingly sensible as campaign finance reform and a muscling up of the moribund Federal Elections Commission taking a decade — with no end in sight.

Each year Kilmer teamed up with willing GOP partners he’d gotten to know at bipartisan breakfasts designed to create common ground, trying for modest reforms that could make a difference.

But each year he saw tidal waves of money flood into congressional races. By 2022, the total amount spent on congressional midterms rose to a staggering $8.9 billion, with just under $2 billion of that coming from outside groups. Compare that with 2006, when FEC reports indicate that independent expenditures totaled $298 million.

“When you have that kind of money washing through,” Kilmer said, “it leaves everyday Americans on the outside looking in. We know that deep pockets and special interests have too much say in our political system and they’re getting stronger all the time. Even the rules we have aren’t enforced.”

If you want to restore trust in American politics, reforming campaign finance is a great place to start. A 2023 Pew Research Center report on Americans’ views about the role of money in politics shows that more than 70% of US adults believe in campaign spending limits, with only 11 percent saying that spending should be unlimited.

American voters actually have a fairly perceptive take on campaign spending. Most surveyed say the cost of modern campaigns proves too high a hurdle for “good people.” Nearly three-fourths say lobbyists and special interests wield too much influence as a result compared to constituents. Remarkably, they still believe in the power of laws to impose those limits. Six in 10 say the proper laws could restrain the role of money in politics, including half of Republicans and two-thirds of Democrats. Yet the fight against the influence of moneyed interests on politics has been a losing battle ever since 1975, when the financial abuses unearthed during Watergate and the 1972 presidential campaign prompted Congress to set the first serious limits on contributions and establish the FEC as an independent agency.

One year after the FEC opened, the Supreme Court overturned most of the existing spending limits in Buckley v. Valeo, ruling them unconstitutional limits on political speech.

Limits returned over concerns about the rise of “soft money” — unregulated donations to political parties that could be redirected. In 2002, Republican Senator John McCain teamed up with Senator Russ Feingold, a progressive Democrat from Wisconsin, to pass the Bipartisan Campaign Reform Act, landmark legislation to limit political spending and thinly disguised “issue advocacy” ads designed to evade disclosure laws.

But in 2010 came the Supreme Court’s infamous Citizens United decision, which obliterated most of the reform act. It declared money equaled free speech and corporations equaled people — at least when it came to political speech.

In so doing, the court paved the way for the Super PACs and dark money that have come to dominate campaigns. The two work hand-in-glove. Super PACs can raise unlimited amounts but must disclose their donors to the FEC. Dark money nonprofits can not only raise unlimited amounts but also keep donors secret. They can, in turn, make mega-donations to Super PACs, which get away with listing just the group’s name, thus hiding the individual dark money donors.

The only restriction — and it’s weak tea — is that such groups cannot coordinate (at least not too obviously) with candidates themselves. During the 2022 election, committees reported taking in more than $600 million in such donations — more than in any previous midterm.

“The more we see these dark money entities play in our political system, from whatever angle, whatever agenda,” he said, “regular people are left to think ‘How does my voice matter?’ It’s me sitting there with a rolled-up sheet of paper for a megaphone while the special interests have a top-of-the-line system with the amps cranked up to 11.”

When Kilmer teamed up with Pennsylvania Republican Representative Brian Fitzpatrick, he found his perfect cosponsor. An ex-FBI Special Agent, Fitzpatrick is also a former national director for the agency’s Campaign Finance and Election Crimes Enforcement Program and a recognized expert in ways to restore integrity to government.

In introducing the Restoring Integrity to America’s Elections Act earlier this year, Fitzpatrick said in a statement that “for our democracy to function, voters must be able to have confidence in our electoral institutions,” noting that the bipartisan reforms in the bill would ensure that the FEC “does not remain yet another example of partisan gridlock.”

Unlike most independent agencies, the FEC has an even number of commissioners — three from each party. It has no independent funding. Even minor decisions, such as looking into a complaint filed, must get a majority vote from the board.

Fitzpatrick and Kilmer’s bipartisan and bicameral bill would reduce the FEC commission from six members to five — two from each major party and one independent, aligning with how most independent agencies are structured. An advisory panel led by the president would suggest nominees, based on specific experience.

“We want individuals who know election law,” Kilmer said, “who have a demonstrated record of integrity, impartiality and good judgment.”

The act would streamline enforcement and, crucially, allow the agency’s general counsel to launch investigations without having to wait for a majority vote.

Those proposed changes may sound modest, but as Daniel Weiner, director of elections and government at the Brennan Center for Justice, told me, they could have a substantial impact. The ability to move quickly on complaints, for instance, is essential to accountability. Right now, said Weiner, complaints molder on the dockets and then typically are voted down. Even foreign money investigations drag on for years and result in puny penalties.

In a report earlier this year on election spending by foreign-influenced companies, Open Secrets, which tracks campaign finance, found that between 2018 and 2022, such foreign companies spent more than $163 million on elections in just six states: Colorado, Michigan, Minnesota, Montana, New York and Washington.

The influence of dark money now also has an even more disturbing aspect: the proliferation of “pink slime” websites that look like independent online news sites, but are little more than propaganda, propped up by dark money. As Phil Napoli, director of the DeWitt Wallace Center for Media and Democracy at Duke University, recently wrote, campaign funds that are used to create a website could be an obvious campaign communication, subject to FEC regulations. But, he said, if dark money is used to create a faux news site, “you’ve probably effectively done an end-run around campaign laws.”

After two decades in public office, Kilmer is not running for re-election. But he won’t stop his crusade to put some muscle back into the FEC and is already lining up others to carry on.

“It’s time to put the referee back on the field,” he said.

Despite such good intentions, that goal is moving even further out of reach.

A recent New York Times story showed that a Democrat has joined the three Republicans on the FEC to roll back already inadequate limits, further eroding accountability and emboldening outside groups.

The sad reality is that the lure of mega-donors, Super PACs, and dark money groups is increasingly irresistible to both parties, which are adapting in ways that were entirely predictable, but no less dangerous for democracy.

Sean Cooksey, the Republican chairman of the FEC, said in the news story, “These decisions are a monumental shift in the law at the commission. The deregulators are winning.”

But everyday Americans are losing.

Patricia Lopez is a Bloomberg Opinion columnist covering politics and policy. She is a former member of the editorial board at the Minneapolis Star Tribune, where she also worked as a senior political editor and reporter. This commentary was composed with assistance from Elaine He and Carolyn Silverman. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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