Liberal activists embrace ‘dark money’ in Supreme Court fight

A new group run by former aides to Hillary Clinton and Barack Obama plans to spend at $5 million.

  • Michelle Ye Hee Lee The Washington Post
  • Friday, July 27, 2018 12:45pm
  • Nation-World
Supreme Court nominee Brett Kavanaugh visited the Capitol on Wednesday. (Bill O’Leary/Washington Post)

Supreme Court nominee Brett Kavanaugh visited the Capitol on Wednesday. (Bill O’Leary/Washington Post)

By Michelle Ye Hee Lee / The Washington Post

Liberal activists, who were dramatically outspent in their last fight to fend off President Donald Trump’s Supreme Court nominee, are embracing a tactic that has been a mainstay of the conservative political playbook: tapping a war chest financed by unidentified donors to try to influence judicial nominations.

Demand Justice, a new group run by former aides to Hillary Clinton and former President Barack Obama, plans to raise and spend at least $5 million to try to block the confirmation of Brett Kavanaugh, Trump’s pick to replace Justice Anthony Kennedy. The group is housed within another nonprofit, allowing it to mask not only the names of its donors but the size of their contributions.

Their effort is part of a multimillion-dollar advertising battle already underway over the latest seat to open on the high court. As the White House and Senate Republicans wrangle with Democrats over the release of documents in advance of confirmation hearings, which Republicans hope can begin in a matter of weeks, these groups are already blanketing the airwaves in key states, with the aim of influencing a small group of senators who will cast the decisive votes.

Demand Justice is airing ads claiming that Kavanaugh — a former Bush administration official who currently serves as a judge on the District of Columbia Circuit Court — will help gut the Affordable Care Act and rob women of their reproductive rights.

“We’ll still be outspent markedly, but probably 6- or 7-to-1 instead of 20-to-1 this time. That’s important,” said Brian Fallon, executive director of Demand Justice and former spokesman for the 2016 Clinton campaign. “We’re in a much better place by virtue of the fact that we’re at least mitigating the chronic disadvantage in resources that usually is the case in these fights.”

It is just the beginning of the high-stakes fight driven by nonprofits that are characterized by the Internal Revenue Service as “social welfare” organizations but criticized as “dark money” groups because they are not required to disclose their donors.

Such groups have become ubiquitous in politics since the 2010 landmark Supreme Court Citizens United decision that allowed corporations — including nonprofits that do not disclose their donors — to spend unlimited sums on campaigns.

“These are very sophisticated campaigns that target individual senators [and are] almost surgical in nature,” said Jonathan Turley, constitutional law professor at George Washington University Law School. “Most of this is ‘dark money,’ designed to evade easy identification as to donors and interest groups — and that applies on both sides.”

These nonprofits are required to spend a majority of their money on activity that doesn’t relate to elections. Since judicial nominations aren’t directly related to elections, the groups are able to spend freely — without having it count as electoral activity.

“Spending money now on issues surrounding this judicial nomination free up funds to spend on electoral activity in the fall,” said Charlie Spies, a Republican campaign finance lawyer. “Liberal groups spending $1 million on ads advocating against Kavanaugh in August frees up almost $1 million in capacity to run ads against Republicans in October.”

By far the most influential group on judicial nominations is the conservative Judicial Crisis Network, which works to fill judicial vacancies across the country, including in state supreme courts and appellate courts.

It spent $17 million opposing Obama’s nominee, District of Columbia Circuit Court Judge Merrick Garland, and supporting Trump’s previous pick, Supreme Court Justice Neil Gorsuch.

So far, it has spent $5.3 million on its pro-Kavanaugh campaign focused on states where Senate Democrats are most vulnerable in the 2018 midterms, according to the group. It is prepared to spend as much as $10 million or more.

It received $23.5 million from a separate nonprofit, the Wellspring Committee, which funds conservative causes and groups, according to Wellspring’s tax records. Most of the money Wellspring received that year came from a single $28.5 million donation — and the identity of that donor remains unknown publicly.

Carrie Severino, chief counsel and policy director of Judicial Crisis Network, said her group respects donor confidentiality, both for her organization and those on the left.

“There’s a reason we don’t ask for their donors, and we have the same obligation to protect the confidentiality of our donors, as well,” she said.

Severino declined to discuss how the organization raises money or recruits donors. A representative for the Wellspring Committee could not be reached for comment.

“This type of spending … makes it difficult for the public to believe that the court is some sort of independent arbiter, particularly in politically charged cases,” said Douglas Keith, counsel at the Brennan Center for Justice, which is tracking television ad spending over the Kavanaugh fight.

Another influential conservative group using money from unidentified donors is Americans for Prosperity, the political arm of the conservative Koch network. It has launched its own multimillion-dollar pro-Kavanaugh effort, running ads and mobilizing activists.

On the left, Demand Justice is funded by a fiscal sponsor called Sixteen Thirty Fund, another social welfare nonprofit. It raises unlimited amounts of money from undisclosed donors and then distributes it to dozens of groups working on progressive causes. Demand Justice views Sixteen Thirty Fund as comparable to Wellspring Committee on the right.

Fiscal sponsorships allow nonprofits to support new projects that are gearing up and don’t have the capacity to handle their own legal or personnel matters. Most often, the arrangement is used to help start-ups or community projects, such as art programs or urban gardens, kick into gear.

“The law allows donors the right to remain anonymous, and the Sixteen Thirty Fund leaves it up to individual donors to determine whether they want to disclose that information,” Sixteen Thirty Fund said in a statement.

Demand Justice launched in May. Two months later, it was thrust into the Supreme Court fight.

“Our primary goal is not to just sit around and wait for the next confirmation fight but to build muscle memory on the left and capacity-building so that there’s more of an attentiveness on the issue of the courts in a way that already exists on the right,” Fallon said.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Nation-World

FILE - Britain's Queen Elizabeth II looks on during a visit to officially open the new building at Thames Hospice, Maidenhead, England July 15, 2022. Buckingham Palace says Queen Elizabeth II is under medical supervision as doctors are “concerned for Her Majesty’s health.” The announcement comes a day after the 96-year-old monarch canceled a meeting of her Privy Council and was told to rest. (Kirsty O'Connor/Pool Photo via AP, File)
Queen Elizabeth II dead at 96 after 70 years on the throne

Britain’s longest-reigning monarch and a rock of stability across much of a turbulent century died Thursday.

A woman reacts as she prepares to leave an area for relatives of the passengers aboard China Eastern's flight MU5735 at the Guangzhou Baiyun International Airport, Tuesday, March 22, 2022, in Guangzhou. No survivors have been found as rescuers on Tuesday searched the scattered wreckage of a China Eastern plane carrying 132 people that crashed a day earlier on a wooded mountainside in China's worst air disaster in more than a decade. (AP Photo/Ng Han Guan)
No survivors found in crash of Boeing 737 in China

What caused the plane to drop out of the sky shortly before it was to being its descent remained a mystery.

In this photo taken by mobile phone released by Xinhua News Agency, a piece of wreckage of the China Eastern's flight MU5735 are seen after it crashed on the mountain in Tengxian County, south China's Guangxi Zhuang Autonomous Region on Monday, March 21, 2022. A China Eastern Boeing 737-800 with 132 people on board crashed in a remote mountainous area of southern China on Monday, officials said, setting off a forest fire visible from space in the country's worst air disaster in nearly a decade. (Xinhua via AP)
Boeing 737 crashes in southern China with 132 aboard

More than 15 hours after communication was lost with the plane, there was still no word of survivors.

In this photo taken from video provided by the Ukrainian Presidential Press Office, Ukrainian President Volodymyr Zelenskyy speaks to the nation in Kyiv, Ukraine, Sunday, Feb. 27, 2022. Street fighting broke out in Ukraine's second-largest city Sunday and Russian troops put increasing pressure on strategic ports in the country's south following a wave of attacks on airfields and fuel facilities elsewhere that appeared to mark a new phase of Russia's invasion. (Ukrainian Presidential Press Office via AP)
Ukraine wants EU membership, but accession often takes years

President Volodymyr Zelenskyy’s request has enthusiastic support from several member states.

FILE - Ukrainian servicemen walk by fragments of a downed aircraft,  in in Kyiv, Ukraine, Friday, Feb. 25, 2022. The International Criminal Court's prosecutor has put combatants and their commanders on notice that he is monitoring Russia's invasion of Ukraine and has jurisdiction to prosecute war crimes and crimes against humanity. But, at the same time, Prosecutor Karim Khan acknowledges that he cannot investigate the crime of aggression. (AP Photo/Oleksandr Ratushniak, File)
ICC prosecutor to open probe into war crimes in Ukraine

U.N. human rights chief Michelle Bachelet confirmed that 102 civilians have been killed.

FILE - Refugees fleeing conflict from neighboring Ukraine arrive to Zahony, Hungary, Sunday, Feb. 27, 2022. As hundreds of thousands of Ukrainians seek refuge in neighboring countries, cradling children in one arm and clutching belongings in the other, leaders in Poland, Hungary, Bulgaria, Moldova and Romania are offering a hearty welcome. (AP Photo/Anna Szilagyi, File)
Europe welcomes Ukrainian refugees — others, less so

It is a stark difference from treatment given to migrants and refugees from the Middle East and Africa.

Afghan evacuees disembark the plane and board a bus after landing at Skopje International Airport, North Macedonia, on Wednesday, Sept. 15, 2021. North Macedonia has hosted another group of 44 Afghan evacuees on Wednesday where they will be sheltered temporarily till their transfer to final destinations. (AP Photo/Boris Grdanoski)
‘They are safe here.’ Snohomish County welcomes hundreds of Afghans

The county’s welcoming center has been a hub of services and assistance for migrants fleeing Afghanistan since October.

FILE - In this April 15, 2019, file photo, a vendor makes change for a marijuana customer at a cannabis marketplace in Los Angeles. An unwelcome trend is emerging in California, as the nation's most populous state enters its fifth year of broad legal marijuana sales. Industry experts say a growing number of license holders are secretly operating in the illegal market — working both sides of the economy to make ends meet. (AP Photo/Richard Vogel, File)
In California pot market, a hazy line between legal and not

Industry insiders say the practice of working simultaneously in the legal and illicit markets is a financial reality.

19 dead, including 9 children, in NYC apartment fire

More than five dozen people were injured and 13 people were still in critical condition in the hospital.

15 dead after Russian skydiver plane crashes

The L-410, a Czech-made twin-engine turboprop, crashed near the town of Menzelinsk.

FILE - In this March 29, 2018, file photo, the logo for Facebook appears on screens at the Nasdaq MarketSite in New York's Times Square. Facebook prematurely turned off safeguards designed to thwart misinformation and rabble rousing after Joe Biden defeated Donald Trump in the 2020 elections in a moneymaking move that a company whistleblower alleges contributed to the deadly Jan. 6, 2021, invasion of the U.S. Capitol. (AP Photo/Richard Drew, File)
Facebook, WhatsApp, Instagram in hourslong worldwide outage

Something made the social media giant’s routes inaccessable to the rest of the internet.

Oil washed up on Huntington Beach, Calif., on Sunday, Oct. 3, 2021. A major oil spill off the coast of Southern California fouled popular beaches and killed wildlife while crews scrambled Sunday to contain the crude before it spread further into protected wetlands. (AP Photo/Ringo H.W. Chiu)
Crews race to limited damage from California oil spill

At least 126,000 gallons (572,807 liters) of oil spilled into the waters off Orange County.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.