Regulating “Dark Money” is Code for Censorship

By: Steve Klein

Campaign finance law is based theoretically on the prevention of lighter forms of political corruption. Corruption is exemplified in bribery, which has long been outlawed and is rightly punished as a felony in Wyoming. Bribery law punishes the exchange of money for official acts; campaign finance law aims to curb a more nebulous influence. It does this by limiting or restricting certain contributions to a candidate's campaign and requiring disclosure of a campaign's contributions and expenditures. Wyoming law has already accomplished this. Efforts to expand the reach of the law are philosophically and constitutionally dubious.

Ultimately, campaign finance regulation raises, but usually does not answer questions of undue influence. There is a canyon between receiving a political contribution from someone and allowing that to influence an official act, such as when a legislator votes on a bill. With campaign finance disclosure, the public at large is left to fill in the gap for itself, and the result is often bewildering. For example, the suggestion is almost laughable that a candidate for Wyoming Legislature could be, to borrow a phrase, "bought and paid for" with a $1,500 contribution from an individual—the current statutory maximum. This is low as far as actual bribery goes, and the use of the money must be disclosed as campaign expenditures. If a candidate is honest in his filings and spends lavishly on dinners or a Rolex watch, the information is made public. If the campaign account does not add up and a candidate effectively syphons money from it, then a bribery investigation is appropriate.

The concern of so-called "dark money" is even more disconnected from corruption or undue influence. Such money is simply funds spent on political speech that is not subject to campaign finance disclosure. It does not go to the candidate, to the candidate's campaign, but simply to fund speech, like a blog post or a mailer. As "dark" as it may be, the definition includes the spending of the Casper Star Tribune to print editorials, though I suspect the paper in all likelihood—and all convenience—does not see it that way.

For "dark money" to really matter, the definition of undue influence of elected officials must go so far, then, that someone's political speech fits the bill. So-called reformers will insist this is about money, or the money used to pay for all that speech in mailers or robocalls or any other effective medium. But since the money is never controlled or even touched by the candidate, this is a distinction without a difference. This is about regulating speech in politics, not money.

To consider speech itself an undue influence that may be regulated is not a sign of healthy skepticism about politics or about elected officials, but ravenous cynicism. Other motivations to regulate such money are seductive, but even farther removed from fighting corruption. I am sympathetic to voters and even candidates who would like to know who is saying what about certain candidates and issues, but rude content is not a compelling reason to unmask citizens simply for speaking.

The cursory dismissal of the downsides of disclosure betray a rank hypocrisy among campaign finance disciples. We're to believe elected officials may be unduly influenced by a mailer supporting their respective campaigns. Simultaneously, concerns that these officials might use campaign finance laws to bolster incumbency or, far worse, as a means to retaliate against those who oppose them, are dismissed. Government is corrupt, policy is bought and paid for, but we're to accept the solution is a full accounting of the citizens who are merely trying to play a part in that government. Unlike the undefined undue influence, the dangers of all-encompassing disclosure and campaign finance laws with "teeth" have shown themselves unequivocally again and again in states with more comprehensive regulation—regimes that Wyoming is now supposed to "catch up" with.

It is perfectly appropriate—indeed, laudable—to be outraged at anonymous dirty politics. But it is neither civil or politically purifying to respond to such speech with police investigations and legal penalties. Quite the contrary.

Stephen Klein is a partner with the law firm Statecraft PLLC in Washington, D.C. and a lobbyist for the Wyoming Liberty Group.