We should have sympathy for those harmed by the products they use, but tort law all too often has a corrupting effect on society.
The documentary Dark Money, which was released on PBS a month before the mid-terms and is viewable at special screenings across the country, makes another ironic addition to the echo chamber of campaign-finance reform.
The film features a number of people who claim that money buys elections, including Montana politicians who won despite facing anonymous mailers in the closing days of their races. Dark Money’s subjects also claim that political money buys policy through the funding of nonprofit groups, yet filmmaker Kimberly Reed has no qualms about giving a platform to at least half of the major pro-campaign regulation groups in Washington, D.C., who enjoy a fair amount of clout across the country.
Dark Money decries anonymous political speech, even as its hero, a Montana investigative journalist named John S. Adams, casually refers to just “a source” who disclosed a series of emails to him that led to an article that helped trigger the campaign-finance prosecution central to the film. Someone with half Adams’s cynicism might gather that the source had as much of a political axe to grind or ulterior motive as anyone funding an anonymous attack ad, but apparently one may simply say “journalism” and anonymity loses its alleged toxicity.
The greatest irony of Dark Money is how it presents two of the worst governmental abuses of campaign-finance law in recent history. What happened in Wisconsin and Montana, which I’ll discuss below, were black-hole prosecutions that were far more dangerous than undisclosed political spending.
Viewers are told that campaign-finance is the “gateway issue to every other issue that you might care about,” including education, tax reform, and foreign policy. Ann Ravel, former chair of the Federal Election Commission, has the key sound bite to this effect, though nearly every regulation proponent interviewed for the film (I counted just one interviewee who didn’t fit that bill) chimed in with that message. Her quip is but a tempered way to articulate that most seductive response to politics, which says: If someone disagrees with you on a political issue, it’s because he is bought and paid for.
This is not an argument in the film, but a premise. With it, proponents of campaign-finance regulation often suspend the good faith that productive politics requires. For true believers, it is also easy to ignore free speech, due process, and a litany of other principles in order to smite this supposed corruption.
The bête noire here, as has been the case for the reformers ever since it was decided, is the Supreme Court’s 2010 decision in in the case of Citizens United v. Federal Election Commission, where the Court overturned a ban against corporations and unions from making films that criticized candidates for federal office, like Hillary Clinton. Such speech may advocate for or against a candidate’s election, but federal and state laws may still ban corporate and union monetary contributions—that is, funds given to a candidate rather than financing speech about that candidate.
In the wake of Citizens United, reformers have attempted to dilute this distinction. One way to do that is to try to cast a pall on “independent” speech or, at best, to prevent candidates from working too closely with outside groups. Known as campaign “coordination,” fair regulation aims to ensure that speech outside a campaign is not under the control of its candidate, which would turn it into a de facto contribution, subject to limits or bans.
The trouble is, instead of enacting coordination rules into law or regulation, some inquisitors simply set out to enact it via prosecution. And they do so with the full support of the D.C. regulation groups.
Dark Money laments the end of the notorious “John Doe” investigations in Wisconsin, which sought to prosecute various allies of Republican Governor Scott Walker for alleged coordination. But Wisconsin law provided little definition of coordination, and thus regulated far too much activity.
There is a big difference between an interest group meeting with a candidate to discuss how to promote issues—activity that most consider part of a healthy republic—and a group becoming a surrogate of that candidate’s campaign. Wisconsin law provided no distinction among those activities or anything in between. So, prosecutors were free to seize troves of documents in armed raids of suspects’ homes—the kind of tactics that are usually reserved for organized crime and drug investigations.
Since so much everyday political activity met the unspecified definition of coordination, these citizens were at the mercy of the prosecutors, who made it up as they went along. The Wisconsin Supreme Court recognized this unconstitutional ploy and ended the investigation in 2015. Ignoring most of these details, Dark Money leads viewers to believe that halting the investigation was but more evidence of corruption—that’s right, the judges were bought and paid for, too.
The film posits Wisconsin as the failure against which to compare Montana, the “beacon of hope” for campaign-finance reform, according to the film’s closing narration.
Montana prosecutors charged a state legislator, Republican Art Wittich, with illegal coordination in the 2010 election. Viewers are told by Jonathan Motl, formerly Montana’s Commissioner of Political Practices, that coordination is “a technical term,” and a partial definition flashes on the screen. We are not told that prior to 2015, Montana law barely defined coordination, and then arguably with even less precision than the law used in Wisconsin’s John Doe investigations.
To be sure, the details provided about Wittich’s activities may have been legitimately subject to coordination restrictions; but in 2010 there was nothing in Montana law but cryptic references. As happened in Wisconsin, prosecutors invented the law out of nearly whole cloth. But this time they got away with it, securing a fine of nearly $70,000. How Wittich’s activities were corrupt in the first place is never really addressed—though the prosecutor in his case comes close to uttering “conspiracy to win an election.”
The zealots’ pursuit of Art Wittich, who paid the highest fine yet for such a violation in Montana, did not end there. He faced a complaint that threatened to see him disbarred from the practice of law—his livelihood for over three decades—that was only recently withdrawn prior to an official hearing. Such pettiness is not unique to Montana’s so-called reform: the aforementioned Ms. Ravel, upon leaving the FEC, expressed a similar desire to see all three of her fellow Republican commissioners subjected to bar discipline. Convinced that campaign finance is the root of all evil, many a so-called reformer will not even bother to pause and assess what happens when their ilk attain just a modicum of the real corruptor: power.
If anything, Dark Money serves as ample proof that campaign-finance law will not cure political misinformation or disinformation. Whether consciously or unconsciously, the film does a serious disservice to viewers who might not know much about this subject. By portraying—and promoting—lawless prosecutions as a beacon of hope, Dark Money reveals that the coordinated effort to “reform” campaign finance is about politics, power, and persecution, not reform.