Regulations Are a Better Disinfectant Than Sunlight

A deeply-reported Washington Post story today exposes the network of dark money behind the movement to stack the judiciary with conservatives. The central figure in this movement is Leonard Leo, the executive vice president of the Federalist Society.

We have no idea who the wealthy donors that pay Leo’s apparently multiple salaries are, and we probably never will. Even Leo claims not to know who these donors are. The Post did a splendid job tracing what we do know, but that isn’t a lot:

Leo’s only other publicly known employer is an obscure for-profit start-up called the BH Group. It was registered in Virginia on Aug. 22, 2016, by the same law firm employee who incorporated the BH Fund and the two other nonprofits Leo started earlier that year. The firm is based out of a virtual office suite used as a shared mailing address and meeting space for unrelated companies.

In the two years following its formation, the BH Group received more than $4 million from the Judicial Crisis Network, a related group called the Judicial Education Project and a third nonprofit in the network called the Wellspring Committee, all of them connected to Leo through funding, personnel and the same accountant, IRS filings show. The groups described the payments in IRS filings as consulting, research and public relations fees.

The Post identified ten groups that are in Leo’s “network,” nine of which paid the media relations firm which “coordinated a months-long media campaign” in support of Neil Gorsuch’s confirmation to the Supreme Court.

One thing that becomes clearer the more you read about shady conservative funding networks is that the networks are complicated on purpose, because it makes talking about them and assigning any culpability very hard. The Koch brothers mastered this; they fund a huge network of groups, which are often linked to one another but hard to say are definitively “Koch groups.” Just look at this graphic created by the Center for Responsive Politics in 2014:

Who could ever understand this? More importantly, none of these organizations have to disclose their donors. We can see money moving between nonprofits once those organizations file their taxes, albeit often months or years after they’ve had an impact on our politics—say, in a Supreme Court nomination fight. But as for the actual source of the original donations, you’re usually out of luck.

If you take Leo at his word, he doesn’t see any problem with this. Why? Because the other team does it too, he says.

Later, in response to written questions about the interlocking nonprofits, Leo described the network as “an effective and highly successful judicial coalition that’s organized just about the same as the Left’s, except that their coalition is significantly bigger and better funded.”

This is plainly ridiculous. The left has nothing like the Federalist Society in terms of funding or power. It has hardly any groups that explicitly work on judicial nominations at all; to its great discredit, it has lagged behind conservatives on realizing the importance of court nominations for years. It’s true that some of the groups that do are just as secretive as the Federalist Society about the sources of their funding, like Demand Justice, but it’s absurd to say they’re as powerful or have seen anything close to the success of the Federalist Society, whose members include the Supreme Court’s entire conservative majority.

And again:

Leo told The Post he has employed techniques liberals used to derail the nomination of Robert Bork to the Supreme Court almost three decades ago.

Conservatives of all kinds seem to believe that the left is extremely powerful; some take that to the extreme, seeing figures like George Soros pulling the strings behind every individual and organization to the left of Steve King. In general, they seem to have this idea that the left has been very successful and dominates the establishment. They think the media is liberal; the government is liberal; the courts are liberal; Hollywood is liberal; your bullshit children are liberal; K-cups are liberal.

It is easy to dismiss this as Fox News-induced right-wing delusion, shared only by angry old white guys. It’s definitely a good way to get viewers or raise money. But what if the people who financially benefit from this madness actually believe it, too? What if Leonard Leo really thinks that the left has an apparatus to rival the Federalist Society, and that this justifies having a massive dark money operation to try and tip the judiciary in their favor? Mate, I wish it did!

But it ought not to matter whether people like Leo believe their own spin that they are the underdogs against a better-organized and better funded left. As wonderful and necessary as the work that outlets like the Post or Maplight have done in uncovering the funding and reach of this network, it is clear that Leo is unembarrassed and unable to feel shame when it comes to these shady activities. It is very easy for people like him to just say some half-assed spin—“I don’t waste my time on stories that involve money and politics because what I care about is ideas,” Leo told the Post—and walk out the door, because what he’s doing is legal. This is what needs to change.

Even when well-funded conservative non-profits act in ways that are plainly illegal, it doesn’t matter. Carolina Rising was a 501(c)(4) ‘social welfare’ non-profit that was funded by one single contribution of $4.8 million, and it spent almost 100 percent of those funds on electing Sen. Thom Tillis. 501(c)(4)s are supposed to spend less than 50 percent of their funds on electoral activities.

It took the Federal Election Commission two years to decide not to investigate the complaint about the group. And the Internal Revenue Service is nowhere to be found in regulating groups like this, in large part because conservatives were so successful at ginning up outrage over the Obama-era “scandal” of the IRS doing its job and investigating the tax-exempt status of Tea Party groups.

We need an aggressive IRS and FEC to monitor these groups, and they need to be empowered to levy fines that actually make discourage this activity, instead of fines that are just the cost of doing business. But it’s not just that the IRS is hobbled or the FEC is broken, because the laws they’re working with are not enough. It is, incredibly, completely legal to give an anonymous multimillion dollar donation to a non-profit that spends all its time working in service of the rich to stack the judiciary in their favor.

Even forcing 501(c)(4)s to disclose their donors probably wouldn’t be enough; apparently they’re ashamed enough of their contributions that they do work very hard to keep themselves hidden. But really, would it stop them donating if they couldn’t? The only way to ensure that rich donors don’t influence politics is, well, to stop rich donors from influencing politics. The FEC bans contributions above $2,700 to a political candidate; why make a distinction for groups that exist to run ads defeating certain laws, or promoting judicial nominees?

In the absence of actual regulation, all we have is the hope that the Leonard Leos of the world will read articles about themselves and feel shame. Good luck waiting for that to happen.