Two cheers for a ‘dark money’ executive order

Presidential decree on donor disclosure would be better than nothing

LAST WEEK, SUPER PACs disclosed their donors to the Federal Election Commission.  The reports included important data and tell a story of the power of large donors. More than 30 individuals or corporations have given over $1 million each so far to influence the 2016 election. Despite this, there is still a lot we do not know about the money being raised and spent. Why? One reason is that, unlike Super PACs and regular candidate and party campaign committees, the so-called “dark money” that 501(c) groups spend is not disclosed.

Many money in politics reform groups are pushing for an executive order from President Obama that would require government contractors to fully disclose all contributions to 501(c) groups. Individuals and corporations who seek favor from government have always directed money to political causes, but, according to a large body of research from groups like Public Citizen and the Brennan Center the amount of money going to dark money groups has increased substantially over the past three election cycles.

But here’s the key question: Would this executive order reduce the power of major donors or corporations that want to spend big money on elections?

Probably not. Requiring disclosure does not in any way restrict what corporations and dark money groups can actually do. If disclosure was required for 501(c) contributions, current donors to such groups would have plenty of options. Some might change their behavior, perhaps by simply shifting their contributions from better known, more obviously partisan groups (think Organizing for Action or Americans for Prosperity) to lesser known groups or groups like the US Chamber of Commerce who have established reputations and more diverse issue concerns.

Other donors would likely stay where they are. Remember, disclosure is not a deterrent by itself. Massive sums of money were spent in 2012 and 2014 – and even more is being raised now – by Super PACs, which do fully disclose their donors.

The executive order shouldn’t be oversold. Disclosure rarely reveals earth-shattering information. Many of the 501(c) contributions that have been unearthed so far by investigative reporters have been somewhat uncontroversial. Corporate donations to groups like the Chamber of Commerce or the American Action Network do not reveal a particularly surprising agenda. It’s hard to imagine many smoking guns lurking in the data that would change voters’ understanding of politics.

It is hard to overstate the damage Citizens United did to the cause of limiting the power of money in politics. There simply is no near-term reform agenda today that is both realistic and comprehensive. The most feasible plan involves waiting for the Supreme Court to change, which could take decades. In the meantime, a series of small, incremental steps may add up to something over time (or they may merely give reform advocates something to do while they wait). An executive order may, then, have some symbolic value. It should not be framed as a solution to the problem.

Nor should an executive order be framed as a means of addressing a “corrupt” campaign finance system.  Public Citizen, the Brennan Center, and others have described the proposed executive order to disclose federal contractors’ political spending as a means of combatting corruption. The groups have assembled a lengthy paper trail of corrupt politicians and corrupt actions. Framing their fight as a means of fighting corruption makes sense at first glance: The Supreme Court has told us for decades now that the threat of corruption is the only plausible reason to restrict the “speech” involved in spending money.

Playing the court’s game is a mistake. As philosopher Molly Brigid Flynn and I argued in a recent paper, when reformers talk about “corruption,” they summon up images of sinister back room deals and crooked politicians.

These images do not reflect today’s realities. What lurks within the dark money contributions is probably neither quid pro quo corruption efforts nor broader efforts to corrupt the system, whatever that means. Corruption implies illegality.  Like it or not, these donations – no matter how large – to multi-purpose 501(c) groups are entirely legal ways of asserting influence.

Corruption is an all-or-nothing term. No politician would admit to being “a little bit corrupt.” Focusing the debate on corruption makes the crucial, long-term project of developing bipartisan solutions to the problem of money in politics much more difficult. The idea that disclosing legal actions is a way of reducing corruption exaggerates what this executive order can really do. And it takes the focus away from the best thing about the proposed order: The fact that is focused on one of the few remaining ideas that both supporters and opponents of campaign finance reform agree on – citizens’ right to know who is spending what in our elections.

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In his second term, President Obama has swung for the fences, taking on untouchable political projects like Cuba and Iran. But he has always shown a willingness to play small ball, and take gains where he can get them. He should sign this order. It’s not the most important thing that can or should be done in regards to our nation’s campaign finance system (and we shouldn’t talk about it that way), but it may well be the most important step that can happen this year.

The long-term fight is about political inequality, not corruption.  That fight will remain for future presidents.

Robert G. Boatright is an associate professor of political science at Clark University and a member of the Scholars Strategy Network.