It has become a cliché in American politics to suggest that our elections system has been corrupted, or “bought,” or “rigged.” This year, even electoral victors, Governor Paul LePage and President-elect Donald Trump, asserted that the political system by which they were chosen was rife with fraud. (See here and here.)
Well, they are right to be concerned. The United States Intelligence Community, which includes the CIA and fifteen other agencies, has concluded that Russia intervened in the 2016 presidential election in order to help Donald Trump win. When the Obama Administration brought the evidence of that foreign attack on American democracy to Senate Majority leader Mitch McConnell (Republican of Kentucky), he shrugged it off as “partisan politics.” The senator’s wife has since been nominated by Trump for Secretary of Transportation. Meanwhile, both Trump and his white power base continue to praise Russia’s strongman president, Vladimir Putin.
And that’s not the half of it. Trump’s most recent allegations of voter fraud – that Hillary Clinton’s current lead in the popular vote is made possible by “millions” of “illegal” voters in California – are part of a long-running campaign of hostility to non-white voters. Since the Supreme Court gutted the Voting Rights Act in Shelby County v Holder, the GOP has increased a variety of new barriers to the franchise that target elderly, rural, and non-white voters with, in the words of the Fourth Circuit, “almost surgical precision.” That campaign against voting rights resulted in, according to The Nation, 868 fewer polling places in the 2016 election than there were in the 2012 race, not to mention fewer chances to vote early, and more challenges to non-white voters at the polls.
Well, while the governor and the President-elect just complain about the corruption of our elections system, the Maine Commission on Governmental Ethics and Election Practices is actually doing something about it.
On December 8th, the Commission unanimously endorsed proposed legislation that would require any organization that donates more than $100,000 to a “Maine political party, action committee, or ballot question committee,” to identify its top five donors. The proposal moves now to a joint committee of both the state House of Representatives and the state Senate, the Veterans and Legal Affairs Committee, which has jurisdiction over Maine campaign law.
Members of the committee are not required to take any action on the commission’s proposal, but they should pass it, and soon.
The commission is responding to a new reality in Maine politics. The 2016 election saw many millions of dollars, a record-breaking amount, flood state campaigns. The spending level made it clear that Maine is an important – and cheap – battleground for issues of national importance, such as gun control, the minimum wage, and the legalization of marijuana.
But it’s not just the amount of money that is alarming. American elections are incredibly expensive, which is why, back in 1977, the Supreme Court said that campaign money is actually a form of political speech. That case — Buckley v. Valeo – didn’t make it impossible to regulate campaign funds; we do regulate speech acts, and some (those that are “directed to inciting or producing imminent lawless action and [are] likely to incite or produce such action,” for example), are prohibited. But it makes campaign finance reform very difficult to manage. Buckley is one of the reasons why Citizens United v. FEC, which opened the floodgates of corporate money into our elections just six years ago, is so difficult to contain or overrule.
Now, there are a lot of ways that the corporate money-speech empowered by Citizens United can be organized and bundled. It can be spent directly on ads for or against certain types of policies (the tighter regulation of firearms, for example), or donated to national or state political parties. But one increasingly popular way to spend that money is anonymously.
Like I said, our problem isn’t just the amount of money, the record-breaking multi-millions, spent in this election; it’s also the type of money that is being spent. For years, lawmakers and scholars of campaign finance reform have referred to “hard money” – the direct donations to campaigns that have limits and that must be recorded with the Federal Elections Commission – and “soft money” – unlimited funds spent on political parties and ads that just advocate for particular issues and not for particular candidates, which are not regulated by the FEC. But now we are also worried about dark money.
Imagine that you’re a voter in Maine who hasn’t made your mind up about a significant issue in an upcoming election; oh, let’s say it’s the question of whether some people can be denied legal privileges of citizenship just because other citizens disapprove of their sexual orientation. The issue is controversial, somehow, and the airwaves are flooded with ads relating to an upcoming voter referendum to reject marriage equality. Many of the ads are paid for by a group with an innocuous sounding name – Stand Up for Marriage Discrimination in Maine, maybe, or just Stand for Marriage Maine – and, in accordance with Maine law, that group releases the names of its donors to the Commission on Governmental Ethics and Election Practices. But 62% of the group’s funding comes from a national group, the National Organization for Marriage, that doesn’t want to release the names of its donors.
That is how “dark money” functions. Wealthy interest groups, corporations, and individuals donate money to nonprofit organizations that are organized, under the tax code, as either “social welfare” or “trade association” groups. Those nonprofits, again by virtue of the tax code, are allowed to spend money in order to influence elections but do not have to identify their donors. So Maine can require all the transparency of state parties and political action committees that its citizens desire; if those organizations take money from dark money nonprofits, Maine voters can’t find out who is really flooding our elections with campaign dollars intended to determine the outcome of our elections.
But back in 2009, the Ethics Commission decided to take on the National Organization for Marriage, and although it took a while, they won. Last year, the Maine Supreme Judicial Court required that NOM release its donor list. (It included, among others, an anti-LGBTQ organization, the Family Research Council, that has been identified as a “hate group” by the Southern Poverty Law Center.) And now the Commission is trying to apply that standard of transparency to any national organization spending over $100,000 in one of our elections.
Dark money groups will oppose this proposal, of course. They want to continue to operate in privacy, and small wonder; democracy is scary, and getting scarier. But when you’re spending millions of dollars to increase the scariness of our democracy – by funding hateful rhetoric, for example, or legalized discrimination, or by attacking regulations that could drive down the rate of domestic abuse killings and the shooting of police officers – you should be willing to publicly own your actions.
After all, if we can know which nation states are trying to corrupt our elections, and whose voting rights are under attack, shouldn’t we also know who is funding our state’s political campaigns?
The Commission on Governmental Ethics and Election Practices thinks that we should, and I agree. If you do too, you might think about letting your legislators in Augusta hear from you on the matter; you can find them here and here.
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