Last night I moderated a panel discussion on dark money in politics at the Vestavia Hills library in an event hosted by Forward Alabama and Over the Mountain Democrats. About 80 people showed up in person and another 150 or so watched the live stream on Facebook (which has become quite the thing lately). John Archibald and Kyle Whitmire of Alabama Media Group’s AL.com participated in the panel discussion that I led, and then Judith Taylor of the Tuscaloosa chapter of Move To Amend gave a presentation on her organization’s proposed constitutional amendment to reverse the result of the United States Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. That is the decision that essentially opened the floodgates for unlimited corporate and dark money spending on elections. All three participants then fielded questions from the audience.
The audience was, of course, politically active and on the side of liberalism, and all of the opinions expressed vehemently opposed dark money and the Citizens United decision. I was surprised, therefore, that only a handful of the audience raised their hands when I asked them if they had read Jane Mayer’s authoritative book on dark money.
Much of the discussion focused on Archibald’s and Whitmire’s frustration with not being able to trace campaign finance money back to its original donor because organizations qualified under Internal Revenue Code Section 501(c)(4) and (c)(6) are not required to disclose their donors. Both journalists named specific Alabama examples, and John Archibald suggested that Alabama Power’s contribution to dark money organizations was undoubtedly enormous.
But of course there’s no way of knowing for sure, because there is no way for the press to pierce the veil of dark money secrecy. That is the problem.
After an extended discussion ranging from Alabama Power’s disproportionate influence on electoral politics in Alabama to Mike Hubbard’s use of dark money to “storm the statehouse” in the 2010 general Alabama legislative election, Judith Taylor gave a presentation setting out the agenda of Move to Amend. Her organization was formed with the laudable goal of reversing the unfortunate decision in Citizens United, a case that gave corporations free rein to pour unlimited wealth into election campaigns, principally to further libertarian and small-government agendas.
Move to Amend’s aim is admirable but its advocacy for a sweeping amendment to the Constitution is ill-conceived and extremely unlikely to pass the onerous amendment process.
The organization proposes a constitutional amendment that would do two things.
First, it would allow governments to regulate corporations without any constitutional restrictions. This is meant to reverse the Supreme Court’s application of First Amendment scrutiny to restrictions on corporate speech.
Second, the Move to Amend proposed constitutional amendment would provide that spending money is not speech for purposes of First Amendment analysis.
Either provision standing alone would result in a host of unintended consequences that are readily apparent (and I’m a liberal who hates Citizen’s United). As I read the proposed amendment, state governments could seize corporate assets without compensation without worrying about the “takings” clause of the constitution. A state could forbid individuals from contributing to the Democratic party, if money given to candidates is not in fact speech protected by the First Amendment. These are necessary consequences of the heavy-handed amendments.
In any case, the amendment’s chances of ratification are absurdly low. The more practical solution to Citizens United is to appoint justices who would agree with Justice Stevens’s dissent in the case, which contrary to popular understanding did not take issue with the basic ideas that corporations are entitled to constitutional protections and that political contributions are a form of speech. Instead, the dissent made the case that reasonable restrictions on corporate election spending are permissible under the First Amendment. We hope that President Clinton’s appointments will follow Stevens’s dissent and thus solve the problem.
The last part of the session consisted of the three panel members fielding questions from the audience. One question made Archibald and Whitmire a bit uncomfortable, which is why their employer, AMG, hired as a columnist Cameron Smith, former vice president and general counsel of Alabama Policy Institute, which is a right-wing think-tank funded with dark money. Archibald said the hire was to balance the two middle-aged left-leaning columnists (himself and Whitmire) with a middle-aged conservative columnist. But when asked whether Smith retains any ties to API, both AMG journalists disclaimed any knowledge and Whitmire correctly said that any such ties should be disclosed by a journalist.
One activist asked why AL.com and other media outlets did not devote much time to covering dark money issues, and the AMG journalists’ answer was refreshingly honest: people don’t click on those stories because they are boring. I agreed with that and told the audience that my extensive book review of Jane Mayer’s dark money book, a project that took me weeks to complete, got fewer pageviews that just about anything I’ve published. That is of only academic interest to me, of course, because I don’t make a nickel off this site, but as my friend Joey Kennedy has stated, AMG’s management puts tremendous pressure on its “content providers,” including the talented Archibald and Whitmire, to write articles that generate more clicks and therefore more ad revenue.
It was an interesting session all the way around and I was privileged to participate in it. My thanks to Pat Greenup for a superlative job in organizing the event and providing handout materials that were substantive and informative.