A few weeks ago, a group of donors announced that they’d formed a super PAC called “Beat Bernie 2020” and they’re refusing to disclose who they are. Why? The Bernie Bros, of course. Those Bros are simply too rude! One of the group’s founders — perhaps obscuring their identity through a vocoder or heavy hood, whatever you prefer — explained in their press release that “[s]haring any kind of criticism about Sanders is almost always met with intense harassment and bullying from Bernie-backing trolls, often with sexist and racist undertones,” and went on to compare Bernie’s supporters directly to Trump’s.
Obviously, this person is a moron. Less obviously, what they’re doing was illegal not so long ago. This spending isn’t the usual type of “dark money,” which usually refers to spending by 501(c)(4) organizations organized for “social welfare purposes” — like Americans for Prosperity or the NRA — who haven’t had to disclose their donors since the ’70s so long as they’ve avoided using magic words specifically urging you to vote for or against a candidate. Every year, the country spends more and more on elections — on advertisements, consultants, leaflets, videos, websites. Even when it comes to the stuff we can actually see, reporting on politics is often more interested in who’s raising how much than who’s supporting which policies.
Things only got worse after Citizens United v. FEC (2010), in which the Supreme Court held that Congress couldn’t ban corporations or organizations explicitly formed for political purposes from making “independent expenditures” during federal elections. That’s the decision that created the “super PAC” — a political action committee that can take unlimited contributions and make unlimited expenditures, so long as the committee doesn’t coordinate with the candidate. But, you might think, when it comes to super PACs, at least you know who’s spending. Federal law requires disclosures. Former New York Mayor Michael Bloomberg can come in halfway through a primary and drop half a billion dollars on television ads and other campaign spending, but you can see precisely how much 30 seconds of prime time television in Topeka costs. You and I can go on the Federal Election Commission’s website and see all the contributions a super PAC is taking. Even eight justices in Citizens United claimed that campaign-finance disclosure requirements were generally kosher under the First Amendment.
We could be awash in dark money of all types, and all because some Buttigieg donors were too embarrassed to attach their name to his.
But under the Court’s own precedent, they’re wrong. The Court’s actually carved out an escape hatch for anyone, including super PACs, to avoid having to disclose their donors: If you can show some evidence that you might get harassed for your speech, you’re home free. The Koch brothers already tried to use this in 2016, and it seems the Democratic establishment is happy to try to force this window open by fear mongering about the vile Bernie Bros. If Beat Bernie 2020 can pull this off, you can bet the entire donor class will follow suit, claiming that Trump supporters will be out to kill them (believable) or that antifa is about to blow up their used Ski-Doo dealership (not so much). We could be awash in dark money of all types, and all because some Buttigieg donors were too embarrassed to attach their name to his.
The American judicial system has always had an uneasy relationship with anonymity. On the one hand, any federal judge will happily tell you that Benjamin Franklin wrote revolutionary letters under a pseudonym (as I am doing with this essay here, and for similarly noble motivations), but on the other hand, if you let people run around with masks on, they might successfully organize protection from the police at rallies. The Supreme Court’s been trying to figure out how much anonymity is too much for a while now, and like any good institution in a bourgeois society, they’ve settled on it being good for lobbyists, donors, and corporations.
The Court first articulated the standard for getting an exception from a law that requires election-related disclosures in 1973’s Buckley v. Valeo. Back then, the Court explained that they’d grant an exception if someone could show “a reasonable probability�� that disclosure would subject you to “threats, harassment, or reprisals from either [g]overnment officials or private parties.” That’s a pretty low standard. It’s also very vague. It wasn’t clear in 1973 what “harassment” would be enough to justify not having to comply with election-related disclosures, and it’s even less clear today. Despite those problems, the Court reiterated this standard in 2010, reaffirming it for the digital age. People don’t agree on what harassment means online in everyday life; now, federal courts will have to sort out whether your Twitter posts are serious enough to keep Sen. Amy Klobuchar’s donors secret. Next time the FEC tries to enforce donor disclosure requirements against a super PAC — assuming that the next president ensures that the FEC has enough commissioners to hear a case — all the super PAC has to do is prove that their donors need anonymity to be protected from the rude mobs.
And that’s exactly the precedent that “Beat Bernie 2020” seems to be hanging its hat on. The only disclosure that their initial FEC filing provides is that their custodian of records and treasurer is a “James Kevin Westgarth,” who apparently maintains an office in Washington, D.C. Other than that, all we know is that the committee’s address is the same as a PAC affiliated with Mylan Pharmaceuticals, the CEO of which is the daughter of West Virginia Sen. Joe Manchin, but that isn’t proof of any intra-Senate conspiracy because the place hosts a WeWork office, too. Beat Bernie 2020 doesn’t disclose its initial sources of funding, and its accompanying press release expressly denies that they ever will. An ostensibly Democratic super PAC is only too happy to try to force the door even wider open for dark money to influence our elections, and all to stop Sanders.
Federal judges are professionals, and you and I know they’re more likely to side with a guy in a suit claiming he got doxxed than the “Twitter troll.”
On this point, our judges will be easy to persuade. For years, conservative jurists have been sowing the seeds here, holding that the mere fact of doing paperwork is a burden on your First Amendment right to far outspend your neighbors in influencing local elections (courtesy of Judge Harris Hartz, a George W. Bush appointee) and that even lobbyists meeting personally with elected representatives have an interest in remaining anonymous (courtesy of Judge David Stras, a Trump appointee). The Koch brothers even managed to convince a California federal judge in 2016 that they would face serious threats if their name could be tied to their “charitable contributions”; the Ninth Circuit had to step in to overturn that decision in 2018. Now that the president’s managed to get more than 50 judges on the courts of appeals, it’s less likely that the circuit courts will do the same.
Federal judges have had to struggle with what kind of social media posts are truly “threatening” or “harassment” for the last few years, and their record isn’t great. It’s hard enough for people who grew up online to know for sure when someone really means to follow through on something they posted; Twitter users told each other “I’m going to kill you” so much that Twitter had to explicitly ban that phrase. Federal prosecutors and judges are even less fluent. Since 2010, federal courts have upheld criminal convictions for threatening speech against a guy who recorded a Youtube country-rap song threatening to kill his family court judge, a guy who posted on Facebook that he would “hunt down” President Obama, and a guy who posted a series of increasingly violent (and technically awful) raps to his Facebook page. I’m certainly not saying that any of those things are fine to say, but I’m not familiar with many murderers who record Youtube music videos about the murders they’re going to commit.
And those cases were about whether those people’s speech was threatening enough to keep them in prison, a much higher standard than the Supreme Court’s “reasonable probability” standard from Buckley. If they thought a guy saying he’d “hunt down” the president was enough to keep him in prison, do you think federal circuit court judges will roll their eyes when they hear about the Bernie Bros? I don’t. Federal judges are professionals, and you and I know they’re more likely to side with a guy in a suit claiming he got doxxed than the “Twitter troll” who posted screenshots of OpenSecrets.org with his address or a picture of Chester Cheetah excreting a Cheeto in the replies of a Mike Bloomberg tweet.
That’s what Beat Bernie 2020 is banking on. Sure, the FEC doesn’t even have a quorum right now to take action. But even if anyone tried to hold it accountable, it’s betting they could get in front of the right judge, find the right screenshots of horrifying Bernie Bro harassment, and make the case that there’s a “reasonable probability” its donors could face harassment. Democratic mega donors are just following the path laid out for them by Bush’s and Trump’s judges, the Koch brothers, and the Supreme Court. And if all goes according to its plan, you’ll never know who’s behind it.
