Many voters were left in the dark regarding who was trying to influence judicial elections this cycle due to spending by “dark money” groups that do not disclose their donors, as well as state campaign finance laws that do not require full disclosure of independent expenditures.
Several races in the 2013-14 midterms showcased the ability of high-spending organizations to wield influence without reporting their donors. National dark money groups, principally on the right, including Americans for Prosperity, the Judicial Crisis Network, the Center for Individual Freedom, American Freedom Builders, the State Government Leadership Foundation, the American Federation for Children, and the Law Enforcement Alliance of America collectively spent $1.4 million in at least six states. These groups are typically organized under section 501(c)(4) of the tax code, which is intended to provide a tax exemption for “social welfare organizations.” Under the IRS’s current regulatory scheme, they can spend money on political activities such as TV ads, radio buys, and mass mailings without being required to disclose their donors. To preserve their tax status, the only restriction is that the organization’s primary purpose cannot be political activity—a vague standard that is rarely enforced.
Another loophole comes from state rules regarding when organizations have to disclose their outside spending. A 2014 report by the National Institute on Money in State Politics found that 24 states fail to ensure meaningful disclosure of outside spending in two ways: either they do not require disclosure unless an ad explicitly calls for the election or defeat of a candidate, or they do not require outside spending to be reported at all. 1 As a result, voters may never know how much money was spent by a particular group seeking to influence an election. In Michigan, for example, the Michigan Campaign Finance Network analyzed Michigan Bureau of Elections filings and public files of state broadcasters and cable systems and found that more than $4.6 million in television spending on state Supreme Court elections was never disclosed to campaign finance authorities in 2014. 2 Although the messages of the ads were clear, because they did not explicitly ask voters to vote for or against a candidate, they fell outside the disclosure requirement.
A Kansas state law loophole also proved to be a problem in 2014, when Kansans for Justice led an 11th hour campaign to oust two state Supreme Court justices. Because Kansas’ disclosure laws do not apply to retention elections, the group was not required to report anything about its leadership, donors, or spending before Election Day. Yet its campaign—which included a website 3 and interviews with local media—was certainly influential: Governor Sam Brownback, facing a close election himself and seeking to energize his base, tapped into the potency of the anti-retention campaign by claiming that the “liberal judges” backed by his opponent had let two convicted murderers “off the hook.” 4 Though the two justices retained their seats—by the closest margins in at least the last 26 years 5—the donors behind Kansans for Justice remain secret today.
While many states have a long way to go towards strengthening disclosure standards, a handful of states have been on the vanguard of promoting greater election transparency. In 2015, political leaders from both sides of the aisle in Montana united to pass a law requiring that any outside group that spends money to influence state-level elections—including social welfare organizations—disclose all of its donors. 6 This law follows a similar measure passed in California in 2014 7 and similar regulations introduced in New York in 2013. 8