In fact, dark money is being deployed in new and revolutionary ways to affect our elections.
Dark money refers to money injected into the process from anonymous sources. Somebody somewhere knows where the money came from, but that information is not public. Usually, the source is a tightly guarded secret.
Dark money is used to fuel television advertisement campaigns and organizations. It is used to buy newspaper advertisements and pay the rent at 501(c)(3) tax-exempt organizations.
Dark money often works like this. A source with deep pockets is interested in an issue. The issue might be green energy, gun rights, Israel, national defense or any of hundreds of other issues affecting the American debate. The source wishes to remain anonymous and wires money to a donor-advised fund. A donor-advised fund is a non-profit that pools funding and decides how to distribute it. They are not required to disclose their own donors.
The donor-advised fund then might distribute the money to the ultimate recipient -- a charity, a foundation or even a traditional media campaign. That's the most common model for moving "dark money."
But there is even darker dark money. The institutional left has developed models in the last decade that dispenses with any pretense of charitable purpose. They essentially create hyper-funded businesses structures whose only purpose it to spend money on issues. The dark money is even darker because there are utterly no disclosure requirements from start to finish. Remember, in the previous, more familiar, charitable example, the ultimate charitable recipient has to disclose to the IRS the sources of larger donations, even if that information is not available to the public.
But this darker dark money -- with funding streams wholly outside of the charitable or tax-exempt world -- faces no disclosure obligations. The owners, or members in the case of a limited liability corporation, would be liable for any taxes flowing from net profits. But rest assured, these dark money-fueled businesses spend every last dime as a business expense, so there might be no tax liability in the end.
Secretly-funded efforts fueled the American Revolution. The founding of this country was supported by an 18th Century version of dark money. Anonymous pamphlets, postings and newspaper columns funded and published without attribution rallied patriots to take up arms against the King of England. Anonymity of donors is an important part of the American legacy of liberty, and in 2021, the Supreme Court, in Americans for Prosperity v. Bonita, recognized the importance of anonymous donors.
In March 2022, the 65 Project launched a new dark money-funded campaign to disbar lawyers who work on voter fraud issues or represented President Trump in post-election litigation. Dark money will fuel an organization filled with lawyers who will file over one hundred bar complaints against conservative lawyers. Their self-confessed goal is to shrink the talent pool of lawyers who are willing to fight for election safeguards.
The 2020 election was characterized by a revolutionary new funding stream in which private money flowed into government election offices, and the donors told the government election offices how to run the election. Characterized as "Zuck Bucks" because the majority of the money came from Facebook founder Mark Zuckerberg, this money made the difference in 2020. Urban election offices in Philadelphia, Detroit, Lansing, Phoenix, Atlanta, Milwaukee and Las Vegas were converted into turnout machines. City officials went door to door collecting votes, all legally because they were city officials. Ad buys were made on urban and Spanish-language radio stations. Voting centers were set up inside urban areas rich in Biden votes. And it was all legal. Zuck Bucks drove Trump's defeat, while many Republicans were distracted by confusing voting machine technology. The use of private money -- much of it dark money -- to fuel election-office policy was the single most revolutionary and effective characteristic of the 2020 election.
Lastly, no discussion of dark money is complete without mentioning ballot-harvesting. Because of the unprecedented rush to mail-in voting in 2020, dark money flowed into structures designed to go out and collect ballots at voters' homes. I had seen this on a smaller scale when I was a lawyer at the Department of Justice Voting Section, where politically-connected collectors would go into minority communities and actually fill in ballots in the voter's home, and, tragically, with the voter's consent. In 2020, dark money was on the ground fueling ballot-harvesting on a massive scale. Unless we had video footage in every home where this occurred, it is impossible to say it was illegal. That is the problem with ballot-harvesting: it goes on behind closed doors, out of sight of election officials.
The question is whether opponents of these efforts can be as imaginative, and whether even a fraction of the funding used in the last two years can be mustered to stop it.
Dark money has become the most important fuel driving the debate on every single public issue. In fact, dark money is being deployed in new and revolutionary ways to affect our elections. (Image source: iStock)
Dark money. The words evoke sinister plots, secret organizations and conspiracies fit for a James Bond villain. We hear about dark money in politics, dark money in the elections and dark money supporting a web of organizations dedicated to undermining the American experiment.
Dark money seems to be everywhere -- and it is.
Dark money has become the most important fuel driving the debate on every single public issue. In fact, dark money is being deployed in new and revolutionary ways to affect our elections. Seemingly unlimited streams of philanthropy are pouring into organizations and mechanisms that just three years ago seemed fanciful and beyond the wildest imagination of activist strategies.
But what exactly is dark money, and how does it hurt or help? Is dark money good or bad?
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