Ever since the Supreme Court's landmark 2010 Citizens United decision paved the way for more money in politics, spending by outside groups like super political action committees and nonprofit "social welfare" organizations has skyrocketed. They can spend vast sums as long as they do not coordinate with the candidates they back. Frequently, though, that money cannot be traced. And it's often donated by wealthy individuals who may have a vested interest in who gets elected.
The report released this week by the nonpartisan Campaign Legal Center offers just the latest discouraging news for campaign finance activists, many of whom hailed a federal court ruling last year in Washington, D.C., as a game changer that would force so-called dark money groups to reveal more information about their donors.
The August decision in the case of Citizens for Responsibility and Ethics in Washington v. the Federal Election Commission appeared to crack down on the lack of disclosure. District Court Judge Beryl A. Howell ruled that donors who give for political purposes and independent expenditure campaigns should be disclosed.
But the task of clarifying how to apply the decision fell to the FEC, which issued vague guidance that has allowed outside groups to skirt disclosure, said Brendan Fischer, an attorney for the CLC, which advocates for greater transparency in election spending.
"The FEC's inaction and dysfunction has signaled to many 'dark money' groups that secret spending can continue unabated," Fischer said.
A spokesman for the FEC declined to comment.
About 24 groups reported some contributors but often omitted key details when submitting their reports to the FEC, the CLC found. About three dozen groups that collectively spent $14.3 million on independent expenditures did not explain why they did not report their contributors. Others were vague.
Majority Forward, a nonprofit group with ties to Senate Minority Leader Chuck Schumer, D-N.Y., disclosed none of its donors after spending $19.2 million on independent expenditures during the election season's closing stretch, the report states.
Instead, Majority Forward indicated in a January FEC filing that it didn't have to because its donations fell outside the reporting requirements. That's because the money was not given for specific "political purposes" or earmarked for ads, group president J.B. Poersch stated in the filing.
The group advocated for Democratic candidates throughout the election.
The conservative Heritage Action for America organization similarly argued it didn't have anything to disclose.
That's despite officials from Heritage Action publicly stating that they asked donors for money for 12 races in which they ran ads, according to the report. The group said in a recent FEC filing that the $1.6 million in independent expenditure ads it ran supporting Republicans during the final three months of 2018 came from existing funds — not donors.
"The independent expenditures disclosed on this report were paid for from general treasury funds and, to the best of my knowledge, information, and belief at the time of filing, no reportable contributions were made for the purpose of furthering these expenditures," an official wrote in the filing.
Neither Heritage Action nor Majority Forward immediately responded to requests for comment Tuesday.
But Fischer said the explanations offered by the groups in FEC filings defy common sense.
"What these groups may be banking on is that the FEC is too dysfunctional to enforce the law," he said.