Lexology: “Dark Money” Gets a Little Light: CREW v. FEC and Its Implications for the 2018 Midterms (In the News)

Lexology: “Dark Money” Gets a Little Light: CREW v. FEC and Its Implications for the 2018 Midterms

By  Tim L. Peckinpaugh, Margaret R. Westbrook, Scott C. Nelson and Eli M. Schooley

One of the longest-standing regulations allowing for “dark money” in federal election law was invalidated by a recent federal court decision, meaning politically active nonprofit organizations that make independent expenditures will now be forced to disclose more of their donors…

Now, politically active nonprofits and social welfare organizations must report the sources of all contributions made over $200 for the general purpose of advancing independent expenditures…

[F]ree speech advocates and others have been disappointed. FEC Chairwoman Caroline Hunter, a Republican, lamented the decision, saying it was “unfortunate that citizens and groups who wish to advocate for their candidate will now have to deal with a lot of uncertainty less than two months before the election.” …

David Keating, president of the Institute for Free Speech, said it was a “real prospect” that groups would “choose silence rather than speech-and there are good reasons why they would do that.” Keating said many groups might find it too risky to continue using already-contributed money for independent expenditures, since donors “gave…money under the assumption they would remain confidential…” Noah Bookbinder, executive director of CREW, the plaintiff in the underlying litigation, predicted the decision would have a noticeable effect on spending in the midterm elections.

On the other hand, others, including Keating, have said that Chief Judge Howell’s decision could only change the route by which “dark money” enters the midterm election campaign, rather than the amount or overall effect of the money. Many have speculated that rather than make the independent expenditures themselves and thus be forced to disclose donor information to FEC, nonpolitical committees will instead take the money they have received and donate it to Super PACs already spending on the issues in question.

The Center for Competitive Politics is now the Institute for Free Speech.