Guest Host: Frank Sesno

Protesters march to the Capitol building during a Democracy Spring demonstration in Washington, DC on April 13 calling to change voting laws and campaign finance.

Protesters march to the Capitol building during a Democracy Spring demonstration in Washington, DC on April 13 calling to change voting laws and campaign finance.

Since the Supreme Court’s Citizen’s United ruling six years ago, the flow of so-called dark money into federal elections has been well documented. A much less recognized phenomenon is spending by outside groups in state and local elections – mayoral races, public utility commission contests, school board votes. In 2014 the amount spent by unidentified donors on these smaller stages was nearly 40times the amount spent just four years earlier. And, critics say, a little money in these elections can go a very long way. A discussion about concerns over money and influence in state and local politics.


  • Jan Baran Head of the election law group at Wiley Rein LLP; former general counsel, Republican National Committee; author, "The Election Law Primer for Corporations."
  • Chisun Lee Senior counsel, Democracy Program at the Brennan Center for Justice
  • Patrick Madden Senior reporter, WAMU
  • Ann Ravel Commissioner, Federal Election Commission; former chair, California Fair Political Practices Commission


  • 11:06:54

    MR. FRANK SESNOThanks for joining us, I'm Frank Sesno, director of the school of media and public affairs at the George Washington University sitting in for Diane Rehm today. She's on vacation. Over the last six years, money has poured into state and local elections, much of it from outside groups whose spending became untethered with the Supreme Court's decision on Citizens United. Well, because there are no reporting requirements for these groups, sources of the money are often unknown.

  • 11:07:16

    MR. FRANK SESNOA recent report outlines just how much so-called dark money finds its way into state and local politics and why we should care. Joining me in the studio to discuss it is Chisun Lee of the Brennan Center for Justice, Jan Baran of the election law group at Wiley Rein LLP and Patrick Madden of WAMU. And with us by phone from Cleveland, Ohio, is Ann Ravel of the Federal Elections Commission. Welcome to all of you.

  • 11:07:40

    MR. JAN BARANHello.

  • 11:07:41

    MR. PATRICK MADDENThank you.

  • 11:07:42

    SESNOChisun, why don't you start us off by defining dark money and telling us a little bit about what was in this report?

  • 11:07:49

    MS. CHISUN LEESure. So this report looks at a really remarkable rise in secret election spending by groups like superPACs and non profits after Citizens United in state and local elections. So what we found was, we looked at outside spending before and after Citizens United in 2010 and found a rise in dark money. And that is election spending by groups that don't have to disclose their donors under the law. We found a remarkable rise in what we're calling gray money, which is spending that is transparent on the surface because the spenders have to disclose their donors.

  • 11:08:34

    MS. CHISUN LEEBut when we started looking into those donor disclosures to see where their money was coming from, and we're talking mainly about superPACs, it turned out that they were very often reporting other PACs or other groups.

  • 11:08:49

    SESNOIn other words, one PAC...

  • 11:08:49

    LEEGeneric names.

  • 11:08:49 PAC spends the money, but they've gotten the money from another PAC and so to try to figure out where that money originates, you have to go down through -- I mean, can you even do it?

  • 11:09:00

    LEEPotentially, infinite layers. And this phenomenon had grown so much after Citizens United, you know, call it gray money. So dark money in the six states where we were able to obtain usable, reliable data, shot up 38 times between...

  • 11:09:20

    SESNO38 times?

  • 11:09:20

    LEE38 times between 2006 and 2014 on average across the states. Gray money increased from just 15 percent of outside spending in 2006. By 2014, it was at -- the vast majority of outside spending, nearly 60 percent of all outside spending was what we would call gray money. And that's money that seems transparent on the surface, but when you dig deeper, it doesn’t tell your average concerned citizen or journalist or opponent where that money is really coming from.

  • 11:09:58

    SESNOAnd what dimension of money are we talking about here? Are we talking about thousands, hundreds of thousands, millions?

  • 11:10:04

    LEEWe're talking about millions and, you know, I think an extraordinary measure is looking just at superPACs and by that, I mean, independent PACs that don't coordinate their election spending with a candidate's campaign. In 2006, superPACs took dark money donations from nondisclosing groups, only about $200,000 across the six states we looked at. By 2014, it was over 9 million in dark donations to superPACs, which we think of as...

  • 11:10:40

    SESNOFrom 200,000 to 9 million?

  • 11:10:41

    LEEOver just eight years. And so when you combine what we saw in dark money and gray money increasing, you saw outside spending across these six states going from only about a quarter unaccountable to nearly three-quarters unaccountable in 2014.

  • 11:10:59

    SESNOOkay. Patrick Madden, let's -- you did a documentary looking at this and I'd like for you to explain to the audience what this -- what we're talking about and what we're really talking about here is the influence of this money, less on the federal elections 'cause we know that, but more on state and local. So what's happening? Because this can have a lot of -- this money can also make a lot of influence at state and local level.

  • 11:11:20

    MADDENRight. So I've been covering kind of money and politics at the local level for a long time. And I've just seen how this has evolved almost like, if you remember the game of Whack-a-Mole, right, where you're constantly trying to hit the weasel coming up. So this outside money or this money is constantly finding new ways into local elections. So when I looked -- I was covering our local D.C. council here and this kind of -- it's a superPAC-like group in that it was a PAC that had unlimited contributions. And it popped up last year and started raising, you know, $10,000 checks from a lot of folks that do business with the city.

  • 11:11:59

    MADDENWe're talking, you know, real estate developers, construction firms. And why that's important is that in a normal contribution limit is about $500 for a council race, $2,000 for a mayor's race. So these groups were able to raise so much more money than normally would happen in a race and it just gave this -- it was called Fresh PAC. It gave this group so much more power that even before they even started spending any money, it was potentially having an impact on council members, how they were going to vote and that sort of thing.

  • 11:12:33

    MADDENSo on a very local level, it can have a huge impact because, you know, as you point out in your report, local races are inexpensive. So when you can, you know, blast through those contribution limits, it can have a huge impact.

  • 11:12:47

    SESNOAnd especially at the local community and we'll come back to that in a minute. Jan Baran, you argued before the Supreme Court in 2010 Citizens United. Is there a way to explain, in simple terms, how that ruling changed the landscape for political spending and specifically this idea of dark money, which is not easily determined in terms of the source?

  • 11:13:06

    BARANWell, I'll try and summarize and put all of this conversation into a context. And I think the starting point is that we have these laws that regulate money and politics and we have laws at the federal level, which affect races for president and the House and the Senate and then we have also laws at every state level and the District of Columbia. So we, in effect, have 51 different laws at the state level and then we have the federal law. And in Citizens United, it was the federal law that was at issue and the specific issue was whether or not corporations or corporate money could finance public communications about candidates.

  • 11:13:51

    BARANAnd the federal law prohibited that, prohibited corporations and unions from spending money independently of the campaign, advocating their view about a candidate. At the state level, however, the majority of the states did not prohibit that. So you had a majority of the states where it was already permissible, even before Citizen United, which is kind of important with this study, because part of the study is really look -- focused on what was spent in 2006, am I correct?

  • 11:14:22

    LEE2006, '10 and '14.

  • 11:14:24

    BARANYeah. And it studies six states, five of whom prohibited independent spending before Citizens United. And the only state that's allowed it was California. So what we're talking about is what is the effect of all of this independent spending that now is legal for everybody, wealthy people, for political parties, for corporations and unions and they can pool their money together and create a superPAC which is highly regulated in the sense that they have to register with an election commission and they have to disclose where they get their money.

  • 11:15:02

    BARANAnd also, there are instances of organization, you know, whether it's the National Rifle Association or the Sierra Club or the Chamber of Commerce, they spend money, but they're not a political committee. They're not a superPAC and therefore, they have to disclose when they spend the money, but they don't have to disclose how they finance their spending. And that's the so-called dark money that Chisun is referring to. And there are efforts to require more legal disclosure of that dark money.

  • 11:15:35

    SESNOLet me talk about that and bring in our guest Ann Ravel from -- was a member or a former chair, actually, of the California Fair Political Practice Commission. She's now a member of the Federal Election Commission, pointing out, if I may again, that donations from these -- this dark money groups to superPACs, according to the report, increased from about $200,000 to $9.2 million. Ann, how do those numbers compare to spending at the federal and the state level compare?

  • 11:16:03

    MS. ANN RAVELWell, in the federal level this year, more than $40 million in outside spending has come from undisclosed sources, which is three times what was spent at this point in 2012 and while -- that's an estimate because actually none of the sources will tell the FEC that they're actually the original donors. So that number, many people believe, is far greater than that.

  • 11:16:48

    SESNOFar greater.

  • 11:16:49

    RAVELYes. Far greater than that because we just don't have any way to assess how much is actually being spent that's undisclosed because as we've learned this year, and we've had some cases at the FEC relating to this, now there are limited liability corporations that are being set up solely for the purpose of making campaign contributions and funneling money through them to PACs or superPACs and there's no way to know who the original donors are because it's never disclosed to the FEC.

  • 11:17:29

    SESNOChisun, you say this kind of spending has a much bigger impact at the state and local levels. Why?

  • 11:17:36

    LEEI think the answer comes a lot out of what Patrick has reported. On the state and local levels, you've got a lot more economically significant power that's concentrated in hands that are subject to direct election. Everything from the attorney general, which is directly elected as opposed to at the federal level, to utilities commissioner, determining electricity rates and that sort of thing.

  • 11:18:00

    SESNOComing up, more of our conversation with our panel on the role of dark money in our elections, especially at the state and local level. You're listening to "The Diane Rehm Show."

  • 11:20:01

    SESNOWelcome back. I'm Frank Sesno of the George Washington University, sitting in for Diane Rehm today. We're talking this hour about dark money in campaigns, in particular the money that reaches state and local levels and influences campaigns, perhaps, that is not easily traceable. Patrick Madden, you've worked on this a lot. Tell us -- give us an example.

  • 11:20:22

    MADDENRight, so one of the most interesting examples of this that I came across happened in Parsippany, New Jersey, which is a -- not a big -- it's a town of 55,000 people, probably the last place you'd expect a super-PAC to pop up. But this was a, you know, a Republican primary for the council, and suddenly a mysterious super-PAC starts sending mailers out across the town, targeting one of the council members, and people at the time just couldn't figure out who was behind this group. It wasn't registered -- or at the time, it registered later with the state, but it -- really the disclosure was a problem.

  • 11:20:57

    MADDENAnd when you finally looked at the group and found the disclosure, it was an example of gray money. There was another PAC that had funded it.

  • 11:21:05

    SESNOOne PAC funds another, and so it's...

  • 11:21:07

    MADDENAnd so on, and this is kind of what I do for a living is look at campaign finance records. But it took me a while to figure out, you know, where the money is coming from. It turns out it was two -- two companies that had contracts with the town. They were upset apparently with one of the council members. But it was an example of just how this type of stuff is happening at a very local level and with an impact on sort of these economic decisions that counties, cities have to make.

  • 11:21:34

    SESNOLet me encourage our listeners, and maybe you have an example to share from your community to call in at 1-800-433-8850, excuse me, or email us at Jan Baran, save me from my voice here, which I think I've now gotten back. Was this the intent of Citizens United, to create a maze of money that can reach state and local elections, perhaps where somebody wants to influence an election with a city councilman who might be friendlier to the road that they want to pave or something like that? I mean, this becomes pay for play at some level.

  • 11:22:12

    BARANWell, first of all, the Citizens United decision basically secured the First Amendment right of anybody in any organization to communicate their views publicly. At the same time, and I think this is less reported, in an eight-to-one decision in the same case, the court confirmed that there can be disclosure, and in fact it upheld the federal disclosure that existed then and exists today.

  • 11:22:43

    BARANSo what the Brennan Center report is doing, I think properly, is saying, well, obviously if you want more information, you need to pass more laws that will require more disclosure. And the debate on that is between those who advocate more disclosure and some who advocate, in the view of others, excessive, burdensome disclosure, and where the line ought to be drawn is really at the center of that debate.

  • 11:23:12

    SESNOAnn Ravel, from the perspective of the Federal Election Commission, let me turn to you on this one. Is this rush of money, this lack of transparency, is this the fault of Citizens United?

  • 11:23:21

    RAVELActually I don't think it's entirely the fault. The fault of Citizens United is people, as Jan accurately said, woke up to the idea that they could spend money in this way, and that certainly happened in California, where the law had previously permitted independent expenditures. But I do want to go back to a couple of things, one about the lack of disclosure, because while the Supreme Court did uphold transparency and disclosure in the campaign finance arena, even Justice Kennedy, who wrote the decision in Citizens United, recently said, you know, disclosure is an answer to the problems with campaign finance, but it's not working the way it should.

  • 11:24:12

    RAVELAnd what he meant was they contemplated that because of the Internet and because of the law that there would be full disclosure of all this spending, but in fact it's not happening. We have a dual system, and unlike what Jan said, the reality is that there isn't sufficient regulation. There has not been one regulation at the Federal Election Commission relating to disclosure and relating to Super-PACs since the existence of super-PACs, and they refuse to do it.

  • 11:24:51

    RAVELAnd for that reason, we're not having the disclosure that we really deserve.

  • 11:24:57

    BARANWell, there are proposals to change the disclosure laws at both the federal and the state levels. I mean, there are currently 388 bills pending in 47 states to increase campaign finance disclosure, and in Congress, of course, they've had major efforts to change those laws. But they have been unsuccessful. But I think the point that has to be made here is that there can be more disclosure if you pass a law that provides reasonable disclosure without making it overly burdensome.

  • 11:25:32

    SESNOPatrick Madden, in that case in Parsippany, was there any disclosure? Do people know where that money was coming from?

  • 11:25:36

    MADDENEventually, but it was not something that you could find right away, and even the head of New Jersey's election law wrote a column saying we have to -- we need better transparency because we cannot -- they're not required to disclose.

  • 11:25:47

    SESNOChisun Lee, in your report you looked at six different states. How variant is this of disclosure in one state versus the other? Is it just all the same out there?

  • 11:25:57

    LEEThere is a wide variety of disclosure regimes and laws. When I think that -- I think the fact that we could really only look at six states tells us something about how much bigger the problem likely is. You know, Jan pointed out that we looked at six states. Five of them were severely impacted legally by Citizens United. But in half the states, the spenders on certain kinds of ads, so-called issue ads that mention candidates during election season, don't even have to disclose that they're doing this spending. So in half the country, we don't even have the data on the election advertising that's going on.

  • 11:26:37

    LEESo I think our study, if anything, understates the secrecy problem, as Ann was also mentioning on the federal level. What we know is probably just the tip of the iceberg, and, you know, I think that -- we all agree that the Citizens United majority certainly wasn't saying that unlimited outside spending should be secret, but I think that the majority made a couple of assumptions that have turned out not to be realistic.

  • 11:27:00

    LEEOne of them was that there was effective disclosure that would give the voters the information they needed about -- to evaluate the election ads. And then the other major assumption was that this unlimited outside spending would actually be independent of candidates and not raise corruption or undue influence risks. But now, you know, very shortly after Citizens United we're at a stage where any viable candidate will say, with a straight face, you know, that I've got a super-PAC behind me, even though the law would say they're not supposed to be working hand in hand.

  • 11:27:38

    LEEIt's commonplace now that if you're going to compete at a certain level, you've got to have a super-PAC, even though you're not supposed to.

  • 11:27:43

    SESNOJan Baran, did current laws make it just too easy to obscure the origin of money?

  • 11:27:48

    BARANWell, in some cases that is true. In the federal system, which Ann referred to, we have disclosure requirements, we have super-PACs. We had in the last election approximately $6 billion of money that was spent by all participants, which included, obviously, the candidates and conventional PACs and the political parties. And the so-called dark money that Chisun is referring to in the federal context constitutes about 4.7 percent of all the money that's spent in politics. So...

  • 11:28:27

    SESNOThere's a lot of money spent in politics.

  • 11:28:27

    BARANThere's a lot of money spent in politics, although I'll hastily point out it's still less than what we spend on Halloween. But it's still a lot of money.

  • 11:28:37

    SESNOLet me go to the phones now, and John joins us from Kalamazoo, Michigan. Hi John.

  • 11:28:41

    JOHNHi, thank you for taking my call.

  • 11:28:44

    SESNOThanks for calling, go ahead.

  • 11:28:45

    JOHNYeah, I'm a Democratic candidate running for a Michigan state house seat, and in the last cycle, dark money was used against me. Organization called Faith and Freedom Foundation took a photo of me speaking at a peace rally and then sent out a mailer amongst some of the others that said John Fisher consistently stands for ISIS and Hamas, but who will stand for us. And now...

  • 11:29:12

    SESNOAnd who was the group that did this?

  • 11:29:14

    JOHNFaith and Freedom.

  • 11:29:16

    SESNOAnd what do you know about where their money comes from?

  • 11:29:20

    JOHNThat is totally undisclosed.

  • 11:29:21

    SESNOAnd what's been the impact of this literature against you?

  • 11:29:25

    JOHNWell I lost that -- we were never behind in a poll, but we lost that election, and I don't know how much weight it carried, but they sent out a whole series of flyers. That was just the most egregious one.

  • 11:29:38

    SESNOAnn Ravel, I'd love to pull you in here. You're the Federal Election Commission and former chair of California Fair Political Practices Commission. What's your response to this example that John shares?

  • 11:29:51

    RAVELThat example is very typical. There's numerous situations like that all across this country, and actually some of the ones that are the most egregious are in situations where dark money is being spent against judges, who have to run for office in many states. And everybody expects judges to be fair and have only justice as their intent, but many of them have been subjected to just those kinds of allegations and have lost their positions.

  • 11:30:30

    RAVELSo the effect of dark money, and particularly also, and this was stated in the report that the Brennan Center did, and it's really important because the case that we were -- that I was involved in in California about dark money, had to do with a ballot measure. And ballot measures are very important because they're situations in states and in local governments where people have to weigh in on significant issues. Some of them have huge fiscal impacts on...

  • 11:31:05

    SESNOIt could be budget issue, it can be a road issue, it can be a marriage equality issue, it can be anything, right?

  • 11:31:12

    RAVELIt's been all of those things in California, and in fact on the next -- upcoming election, there are 17 ballot measures that are very significant. And those, when there is dark money spent by some of these unaccountable groups, it is hard for the voters who have to sit -- and I've said this many times before, as legislators for the day. They're charged with the obligation to make important decisions for the state or local government.

  • 11:31:45

    SESNOSo Patrick Madden, let's put an -- let's put an exclamation point on this so that people understand. We're talking about dark money, unidentified money, coming in to a local election or a local jurisdiction to influence an election, perhaps for a judge, perhaps for a ballot measure on how a road is going to be funded or built or paved.

  • 11:32:04

    MADDENRight, I mean, I think -- and that's really I think what one of the main problems here at the local level is that you have lawmakers, regulators that are much more directly involved in these economic decisions, whether it's a road, whether it's a utility rate, whether -- up and down. And when you have these unaccountable groups that can spend unlimited amounts of money, it -- that pay-to-play issue that you talked about earlier comes back into effect.

  • 11:32:32

    SESNOJan Baran, is this what you had in mind when you were arguing for Citizens United, saying that people should have the freedom to spend the money that they want to weigh in? But did you envision, and do you support money that comes in like that?

  • 11:32:45

    BARANWell, I think you're conflating two issues.

  • 11:32:45


  • 11:32:46

    BARANOne is can somebody send out these messages, and the answer is absolutely. You know, if they want to have an ad or a flyer, they ought to be able to do that.

  • 11:32:57

    SESNOEven if they're misrepresenting?

  • 11:32:57


  • 11:33:00

    SESNOEven if they're misrepresenting?

  • 11:33:00


  • 11:33:00

    SESNOEven if you don't know where it's coming from?

  • 11:33:02

    BARANThat's what the debate is. You know, the content, I didn't hear Mr. Fisher saying he wasn't at the rally that he was describing that was the subject of the flyer, and, you know, people can debate whether there was an inaccuracy there or whether it's, you know, unmannerly type of advocacy, but they have the right to say that. The other issue, which I thought was the thrust of the Brennan Center, is do we have a right to know who paid for it, and the answer there generally is yes.

  • 11:33:31

    SESNOAnd we will come back to that. Coming up, your calls and questions for our panel as we stay with our conversation here. You're listening to the Diane Rehm Show. Jan Baran, you were saying the issue here is disclosure. So what needs to happen there?

  • 11:33:48

    BARANThey have to pass a law, and I think the Brennan Center report specifically identifies where, in what areas legislation could be produced and hopefully passed.

  • 11:34:00

    SESNOChisun, tell us about the law.

  • 11:34:02

    LEEWell, I think that there are a few gaping loopholes in the law that could be fixed now, but I do think that even fixing disclosure laws is not going to solve the problem of unlimited, artificial entities having the power to raise and spend unlimited sums. I mean, the incentive is just too huge for big spending to come in and swap regulators. But there are some key things that need to be done and, in some jurisdictions like California, have been successfully done, keeping dark money to a relative minimum.

  • 11:34:35

    SESNOLet me ask Ann Ravel about that. Ann, what -- California had a very different track record than a lot of these other states. What and why?

  • 11:34:44

    RAVELWell, let me, before I get to California, because I do want to talk about that, respond to something that Jan has been saying, which is that essentially we have a really highly regulated system at the federal level and that in order to get disclosure we have to pass a law. There are laws on the books relating to when entities that engage in political activity must register as political committees, and there is no difficulty in looking at some of the ads that are being done by some of these independent groups and understanding that they are clearly political. It is merely because the FEC has failed to enforce the law that we already have on our books that we have been unable to deal with the excessive dark money that is in the federal system.

  • 11:35:45

    RAVELWith regard to California, as we said, California has had independent expenditure groups for many years and had laws on the books that required disclosure of those groups. And though -- they were not always well-enforced, either, and when an unaccounted-for contribution came in on a ballot measure that was a tax measure in 2012, $11 million from a group that had never participated in a campaign in California before, with no identification as to who the donors were or who the group was, the FPPC asked for that information, they refused to provide it until two days before or -- two days before the election, the California Supreme Court ordered them to turn over information to the FPPC about who the donors were.

  • 11:36:49

    RAVELAnd the only information that came was the names of several other 501 (c)(4) s and (c)(6) s throughout the country.

  • 11:37:02

    SESNOSo not exactly clarity, not exactly clarity.

  • 11:37:04

    RAVELNo, not exactly clarity but better than nothing.

  • 11:37:05

    SESNOSo what is the -- very briefly because I'm going to take a real break here, very briefly what is the -- what is the -- what should...

  • 11:37:10

    RAVELThen there was a bipartisan vote in the legislature based on that to pass greater disclosure for 501 -- for these unaccountable groups.

  • 11:37:22

    SESNOComing up, your calls and questions for our panel on the subject of dark money and gray money and money in campaigns, 1-800-433-8850. You're listening to "The Diane Rehm Show." We'll be right back.

  • 11:40:02

    SESNOWelcome back. I'm Frank Sesno. You're listening to "The Diane Rehm Show." Our conversation is on the subject of dark money and gray money in campaigns and whether you know where it's come from and what election, local, state or otherwise, it's going for. If you'd like to call in with a comment or a question, please do so at 1-800-433-8850. Send your email to

  • 11:40:23

    SESNOOur panel, Chisun Lee, she's senior counsel for the -- in the Democracy Program at the Brennan Center for Justice, Jan Baran is head of election law at Wiley Rein LLP, former general counsel to the Republican National Committee and author of "The Election Law Primer for Corporations." Patrick Madden, reporter at WAMU, focusing on power and influence, and by phone from Cleveland, Ohio, Ann Ravel, member of the Federal Election Commission, former chair of the California Fair Political Practices Commission.

  • 11:40:47

    SESNOFolks, before I come back to you, I want to pick up a little bit with California because California is a bit of a lesson here, is to share a couple of emails we've gotten, from Sharon, who writes in from Ohio. What I find insidious is the spender wants to hide this. Okay, spend all your money on whatever you believe, but if it's such a great opinion, attach your name to it. Why hide?

  • 11:41:07

    SESNOFrom Jack in Birmingham, Alabama, why are the Republicans and Trump -- what are the Republicans and Trump saying about campaign money, especially Citizens United? And from Bill in Raleigh, North Carolina, it's not part of the logic of Citizens United decision that campaigns -- is it not part of the logic of Citizens United that campaign spending is a form of free speech? If so, it would then seem that dark money, gray money is a form of unaccountable, anonymous speech. We'll get to all of these in the conversation.

  • 11:41:34

    SESNOJan Baran, you want to respond to one of those first?

  • 11:41:35

    BARANOh sure. Well, I think Ann Ravel's explanation of what happened in California is a good example of how the process should work and what the Supreme Court contemplated in Citizens United. California, as I said earlier, is one of those majority of states that never prohibited independent spending. They had a long history of it. They've also had an independent enforcement agency since 1974, and Ann Ravel was the chair of that.

  • 11:42:03

    BARANThey identified a group that refused to disclose, as the law then required. They enforced the law. The in the process not only fined the people who violated the California law, they also identified a deficiency in the disclosure law. And as Ann mentioned, the California legislature passed additional disclosure laws. So now we have more disclosure that's being enforced in California. And that I think is going to contribute to a minimization, maybe not the entire elimination because people can intentionally violate laws, but the diminishment of so-called dark money or gray money in California. That's the way it's supposed to work.

  • 11:42:50

    SESNOPatrick Madden, respond to this email from Sharon here. You know, if it's such a great thing, go with your opinion, attach it, why hide it? In your reporting, why do people hide their donations?

  • 11:43:00

    MADDENWell because I think we have to get to the why are they making the donations in the first place. Why spend so much more money than you could just by making a regular contribution? And you have to look at, as the report from the Brennan Center points out, all these different examples of these groups want something from the government. They're doing business with the government, or they want something changed from the government. And so that's -- I mean, that's a critical part of this.

  • 11:43:21

    SESNOChisun, give us an example.

  • 11:43:23

    LEESure. Well, there's an example out of Utah, attorney general's race in 2012, and you had the candidate there -- the fight was in the Republican primary, and you had one candidate, who ultimately won by working -- his campaign worked with dark money groups that represented payday loan companies. So you ask why keep it secret. Payday lenders are not a very popular industry. But they gave $700,000 to dark money groups named nothing that would tell you that these are payday loan companies, one of them was called Proper Role of Government Education Association.

  • 11:44:02

    SESNOThat sounds fun.

  • 11:44:03

    LEEYou would never guess. They funded outside attack ads against his primary opponent, attacking his character, his demeanor and all -- you know, what you would imagine in an attack ad. But the candidates' campaign disavowed any connect to that and instead said we're proud of running a clean campaign. He ultimately won, and then it was by chance that questions started being raised about this coordination with dark money groups and payday lenders, totally by chance this came up.

  • 11:44:30

    SESNOAnd what'd they find?

  • 11:44:31

    LEEAnd the state legislature actually convened a special prosecutorial committee. They put together a report of 200 pages, and they found that this was totally worked out between the candidate's campaign and these dark money groups to hide the support from the payday lenders, who were working with the campaign, because this candidate was -- had promised them I'm going to go light on these new consumer protection regulations that were coming down from the federal government to better police payday loan companies. You help me, you know, essentially, I'll help you.

  • 11:45:04

    SESNOThat's -- that's pure government for hire, that's -- right?

  • 11:45:06

    LEEBut the voters had no idea that these companies were actually behind those ads.

  • 11:45:10

    SESNOJan Baran?

  • 11:45:10

    BARANSo that was illegal in Utah, was it not?

  • 11:45:12

    SESNOAnd he lost his job.

  • 11:45:12

    BARANHe lost his job, and they found that he had violated the disclosure laws, as well as the coordination laws. So yes, illegal conduct under existing law is unacceptable.

  • 11:45:26

    SESNOLet's go to the phones. Gary from Ann Arbor, Michigan, go ahead, Gary.

  • 11:45:28

    GARYHi, thanks. I think that you almost glanced on the issue I wanted to bring up. Mr. Baran, you made a point of mentioning both unions and the Sierra Club, as if somehow this Citizens United is good for all. But you really need to make the distinction between groups and interests that are in the public interest and in the private interest. When the Koch brother and Sheldon Adelson and other multi-billionaires give their money, they give it for their own benefit. They're arguing they want the government to do things that work for them. You may agree or disagree with the Sierra Club, but when they give it, they give it because it's in the public interest.

  • 11:46:12

    GARYAnd by the way, the Sierra Club doesn't have anywhere near the kind of money that the hundred billionaires that are out there like the Koch Brothers. Thank you.

  • 11:46:21

    SESNOOkay, Jan Baran, you want to comment on that?

  • 11:46:23

    BARANWell, I think all these groups have a viewpoint, and I don't think that they are selfish about it. They've come to a conclusion that they want government policies to operate in a certain way. And by the way, you know, wealthy individuals have had this right to spend money in this fashion since 1976 in the Buckley decision. So that is nothing new. The only issue with Citizens United that was extended was, you know, whether unions and corporations could undertake the same type of speech activity as other types of groups and individuals.

  • 11:47:00

    SESNOPatrick Madden?

  • 11:47:01

    MADDENBut I think that one issue that I looked at when I looked at New Jersey and some other states is that they have what are called pay-to-play laws on the books that prohibit government contractors from making contributions so that it doesn't appear like you're buying something. But it seems like these dark money groups or these super-PACs can be a sidestep those pay-to-play laws.

  • 11:47:25

    BARANI think that's what the...

  • 11:47:26

    SESNOLet me let Ann in here.

  • 11:47:27

    BARANOkay, sure.

  • 11:47:27

    SESNOI know she wants to jump in. Go ahead.

  • 11:47:29

    RAVELYeah, I don't want to talk about pay to play, but I do want to mention something that I think we have not talked about because when we're talking about the negative effect of unaccounted-for dark money, one of the important things to remember is it's not just disclosure laws that people may be violating. It's also the laws relating to whether or not you are a foreign operative that's giving money illegally, which it's illegal in all elections in the United States. And there is no way for enforcers, whether it be the Justice Department or the FEC or local agencies, to deal with that problem.

  • 11:48:11

    SESNOSo what should we do with that problem?

  • 11:48:13

    RAVELWell, that's why we need disclosure.

  • 11:48:16

    SESNOOkay, let me go to the phones, and John...

  • 11:48:17

    RAVELIt would be bad for the public, it's bad for the agencies that are...

  • 11:48:20

    SESNOOh, exactly, and this is the problem when people don't know where it's coming from. John joins us now from Pittsburgh, Pennsylvania. Hi John.

  • 11:48:26

    JOHNHi, thanks. My question are what are the reasons that other states aren't passing model transparency legislation like what your guest mentioned in California? Is it that they're just not paying attention to the issue, is it that special interests are getting involved, or is it something else?

  • 11:48:43

    SESNOAnn, let me turn that to you. Why aren't other states passing these laws?

  • 11:48:47

    RAVELI actually do think that many states, and by the way this is not a red- or blue-state issue, this is true across the country, many states are very interested in these issues and are trying to formulate laws to require greater disclosure. I don't know, each state is probably different, about why they haven't been able to be quite as effective as California.

  • 11:49:13

    SESNOOkay, Gigi joins us now on the phone from Michigan. Hi Gigi.

  • 11:49:15

    GIGIHi. I just wanted to point out, it's that you mention all the PACs that are actually giving money to these people. I find that a lot of this I'm hearing is one-sided. We have someone named George Soros, and I think everyone probably knows that name, he started in, what, 1996 donating to the Democratic Party. He -- just last year he donated $24 million to Hillary Clinton, and again this year he gave again $1 million.

  • 11:49:49

    GIGIHe funnels it through PACs, he's toppled the monetary system of four countries, and he's working on ours. He's been doing it for years. It's a chess game for him. And he puts it as though he's trying to be helpful. He tries to topple our drug laws. He wants to make immigration so anyone can come in. And he's not under Citizens United, and from what I understand, from the lawyer who was working for Citizens United, it was more to balance it out against people like him and against the unions because as a union member myself, I know they do take money from my dues to pay for the Democratic Party.

  • 11:50:27

    SESNOSure, good point, and Jan Baran, I mean, fair enough, right? Everybody wants to scream about the Koch brothers, but George Soros has been doing this on the other side of the ledger for -- political ledger for a long time.

  • 11:50:37

    BARANYeah, political activism is definitely bipartisan. You know, the largest independent super-PAC donor in the last election, in 2014, speaking of the Sierra Club, which came up in the earlier discussion, was a gentleman named Thomas Steyer. He spent $73 million. Now he's a very, very fervent environmental activist. And then we have the example of Mr. Soros and Mr. Adelson, as well. So I mean, yes, wealthy people have the resources, and they can spend that money, and if they're doing so with the legally required disclosure and without collaborating with the candidates, they have a legal and constitutional right to do so.

  • 11:51:22

    SESNOTo be clear here, Chisun, what we're talking about is not money that has been spent in some cases for a long time by wealthy individuals, and certainly Citizens United reinforces the principle that everybody can exercise their free speech no matter the cost, it is the disclosure, it is knowing who is doing that, knowing where that money is coming from.

  • 11:51:43

    SESNOAnd in our conversation about dark money and gray money, it's about how money that's very difficult to trace reaches very local elections, potentially, to influence who's elected mayor or dog catcher or attorney general.

  • 11:51:56

    LEEThat's right, and then the key issue is what the voter is able to know with just reasonable investigation, clicking on something, looking something up, about who's behind that ad that keeps going up on TV or the mailer that shows up in their mailbox. And it's -- it's a bipartisan issue. There -- you asked about places that are passing laws to try to increase transparency. Montana recently passed a bipartisan disclose act. The lead sponsor was a Republican state senator because there was just bipartisan disgust with outside dark money coming into their state. These candidates on both sides of the aisle believed it was coming from business interests who are interested in Montana's natural resources.

  • 11:52:36

    LEEThey passed a tough disclosure law that said if you're going to spend in our elections, you need to tell us who you are so that we can figure out what you want out of us, and, you know, I think that what you're asking can go to -- it's really like voters and then the one person, whoever you want to put in that one percent. There have been polls, a New York Times-CBS News poll a year ago showed three-quarters of Democrats and Republicans want more disclosure of election advertising.

  • 11:53:04

    SESNOI'm Frank Sesno, and you're listening to the Diane Rehm Show. Patrick Madden?

  • 11:53:09

    MADDENI guess one silver lining that I noticed when I was doing my reporting was that at the local level, when these groups do appear, there seems to be a lot of blowback against them. And so whether it was here locally in D.C. with this fresh PAC group or in Parsippany, often there's a lot of pressure for these groups to go away once they are disclosed. So -- and I think people, when I would talk to just regular voters or activists, they -- when they looked at the federal election, the presidential campaign, I think they kind of expected these groups to pop up. But when it was happening at their local level, it's much more real, and I feel like there was a lot more pushback from citizens against these groups and kind of the pressure on politicians who were receiving, you know, inadvertent support from them.

  • 11:53:49

    SESNOBack to the phones and Eric, who joins us from Virginia. Hi Eric.

  • 11:53:51

    ERICYes, thank you. I used to be a full disclosure but unlimited-type supporters, unlimited money but full disclosure. However, I think we've seen both on the left and the right, Democrat and Republican, that there's quite often retribution being taken against the, quote, people that donate to the wrong side. So I think, you know, sadly I think now there's a very strong argument for, in order to freely exercise your First Amendment rights, you should be able to exercise it with some anonymity because you don't want the government cracking down, like the IRS did with the Tea Party or, you know, Bush administration may have done with some Democrat donors of companies that -- for government contracts. I think it's -- it happens all the time, and we see it around here in Washington all the time.

  • 11:54:40

    SESNOThat's a very interesting point. Ann, let met turn that back to you. What about that? What about the ability to weigh in and support a cause with some degree of anonymity?

  • 11:54:51

    RAVELWell, even Justice Scalia in the Supreme Court, when he was on it, said very clearly that the obligation of citizenship is for individuals to stand up for their political views. And while there is some -- a smattering of blowback that people get for having particular political views, the Supreme Court has never recognized the kinds of things that the caller is talking about as a reason to allow anonymity. Anonymity is a much more pernicious problem for more of the people in this country than a couple of people who have experienced some blowback.

  • 11:55:41

    SESNOPatrick, from your reporting, is there a rising awareness and a rising outrage about this?

  • 11:55:44

    MADDENI mean, that was my understanding that, you know, here in D.C., when this group started, FreshPAC, the mayor eventually, the public outcry grew, eventually had to -- you know, this group disbanded. And in the Parsippany case, the guy who was being targeted, he actually won and it's thought that because of this group was not actually helping that much.

  • 11:56:06

    SESNOJan Baran, this is for you. We have an email from Gary in Genesee, Ohio. Anonymous speech is protected -- this is playing off the last question. Anonymous speech is protected by the Constitution. Do you disagree? What about anonymous giving?

  • 11:56:18

    BARANWell, there are circumstances where the Supreme Court has upheld a right to anonymous speech. I think the most famous historical example was a law passed by Alabama requiring groups like the NAACP to disclose their members at a time when there was a great risk of intimidation, retribution and even potential violence. And the Supreme Court said that under those circumstances, you cannot constitutionally require disclosure.

  • 11:56:46

    BARANThere was also a separate case involving a pamphleteer in Ohio, which had a requirement that people identify themselves if they spend over $250 on pamphlets or something of that nature. And the Supreme Court held that that was too burdensome, it was too low a threshold to require disclosure.

  • 11:57:07

    SESNOI want to give the last word -- thanks very much, Jan. I'm sorry to rush you. But in the few seconds remaining, Ann, to you. What can a citizen do? They're listening to this, they want to see what they can do to change things, who should they contact?

  • 11:57:20

    RAVELWell, I think people definitely should vote, should participate in the political process and make their views heard, and they should talk to their congress people. It's sort of an old saw...

  • 11:57:37

    SESNOBut it's good, and it still holds. We'll leave it there. Ann and to the rest of the panel, thank you all very much for our conversation on dark money, gray money in politics. I'm Frank Sesno, you're listening to "The Diane Rehm Show."

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