So far this year, groups that do not disclose their donors, and legally are not required to do so, have reported almost $12.4 million in political spending to the Federal Election Commission, much of it made possible by the Supreme Court's Citizens United decision.
Some $8.4 million of this dark money has paid for independent expenditures–advertisements, phone banks, get out the vote operations and other spending aimed at electing or defeating a specific candidate. Non-profits organized under section 501(c) of the tax code spent the bulk of the money; under federal law, they are not required to disclose their donors to the public and can accept funds in unlimited amounts from corporations, labor unions and individuals.
Prior to the Citizens United ruling, only political committees that disclosed their donors–all individuals–and accepted limited contributions from them could engage in such activities. Recent court decisions, including the Supreme Court's overturning of a Montana law that barred such spending by corporations and a successful suit that might require more disclosure by groups airing airing issue ads could mean an explosion of overtly partisan, anonymous political spending.
The chart below outlines the groups that make independent expenditures and don’t disclose their donors with the FEC.
So far this year, groups have reported spending $3.9 million in dark money on issue ads, formally known as electioneering communications, which mention and often criticize the policies of federal candidates, but do advocate their election or defeat. Electioneering ads air on traditional broadcast mediums; groups only disclose spending on issue ads that run 60 days window before a general election, or 30 days before a primary, convention or special election.
While the FEC only required groups spending on issue ads to disclose their donors if those donors gave solely to run a particular issue ad, Rep. Chris Van Hollen, D-Md., has been waging a so-far successful legal battle to change that. The U.S. Court of Appeals for the D.C. Circuit ruled that federal law explicitly requires such groups to disclose all their donors if they run an issue ad. Some nonprofit groups have appealed that ruling. (See the list of electioneering communications on Follow the Unlimited Money).
Should the Van Hollen decision be upheld, dark money groups can simply switch from electioneering communications to independent expenditures–the U.S. Chamber of Commerce, historically one of the biggest spenders on issue ads, has done just that, making their first independent expenditure in Utah supporting Sen. Orrin Hatch.
Dead ends to disclosure
The total amount of dark money spent to influence elections in 2012 at present cannot be calculated. The $12.1 million figure does not include contributions made by dark money groups to super PACs, which register with the FEC and disclose their donors. The Sunlight Foundation indentified $1.6 million that 501(c) 4 organizations gave to super PACs in 2011, when there was not a major election. Nor does it include contributions made by shell corporations whose owners cannot be traced.
Nor does it include spending on electioneering communications outside the window in which such political advertising is reported to the FEC. Further, the FEC does not require groups to report spending on issue ads distributed through other media–via electronic communications such as email, YouTube and banner ads–even within the electioneering window.
While some of this spending can be tracked using different sources of disclosure, not all of it is timely, itemized or easily accessible. Nonprofits disclose the total amount they spend on political activities in the publicly available tax returns they file annually with the Internal Revenue Service, but do not list how or where that money was spent, and will be available only in 2013 at the earliest. The Federal Communications Commission requires radio and television stations to maintain publicly available files tracking spending by political groups, but these files are only available on paper, at the stations themselves.
The Sunlight Foundation and partner organizations including Free Press and the New America Foundation have launched an effort to put the political ad records online, and to create a searchable, storable database for the public to track expenditures this fall. Sunlight and its partners are seeking volunteers to help gather the records, beginning with a pilot project in Wisconsin.
The big players
To date, the biggest of the independent expenditure groups that do not disclose donors have all tilted left: Planned Parenthood Action Fund Inc. has spent $1.6 million, AFL-CIO and Municipal Employees $1.5 million and Patriot Majority USA at almost $1 million.
Patriot Majority, a 501(c) 4 organization, waged an independent expenditure campaign in 2010 to reelect Senate Majority Leader Harry Reid, Nev. Its President, Craig Varoga has worked on the Presidential campaigns of Bill Clinton, Al Gore, Wesley Clark and John Kerry.
The following ad is an example to and independent expenditure ad, created by Patriot Majority, against Rep. Denny Rehberg, R-Mont.
The largest electioneering group this year is the U.S. Chamber of Commerce. The giant trade association has disclosed spending $3.3 million on electioneering ads, often formatting the same ad to apply to several members of Congress and always mentioning President Obama. The following two ads are an example of these “déjà vu” ads.
Crossroads GPS and Freedom Path spent more than the other electioneers this year but not nearly as much as the Chamber of Commerce. Crossroads has disclosed spending $256,000 on electioneering so far this year. In the 2010 election cycle, the Center for Responsive Politics found Crossroad GPS spent at least $16 million on issue ads, all paid for by anonymous donors.
The following is the data from the unauthorized, "Non-committee" independent expenditures that were not individuals and did not disclose donors: