Comment: Hyypocrisy in right’s ‘dark money’ protest of left’s

By Glenn Kessler / The Washington Post

The Supreme Court’s “justices were to uphold the Constitution, to be above politics. Now, that legacy is being tarnished by secret money from liberals … a record amount of dark money, over a billion, put them [Democrats] in office, so they will put up an Arabella judge, a liberal activist, a Biden rubber stamp.” — Voice-over of a Judicial Crisis Network ad, released Feb. 4

“Dark money groups, including Demand Justice, have been pushing Ketanji Brown Jackson for a SCOTUS spot for over a year. Once again, Joe Biden delivered for dark money groups and their wealthy donors.” — Tweet by American Rising Squared, Feb. 25

What do the Judicial Crisis Network and American Rising have in common? They are both “dark money” groups complaining about the influence of dark money; when it comes from the other side of the political spectrum.

Let’s explore.

Since the Supreme Court in its 2010 Citizens United case allowed corporations — including nonprofits that do not disclose their donors — to spend unlimited sums on campaigns, tens of millions of dollars have been spent trying to influence the course of judicial nominations.

The nonprofits taking advantage of the Citizens United ruling 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.

For instance, the conservative Judicial Crisis Network works to fill judicial vacancies across the country, including in state supreme courts and appellate courts. It received $17.9 million in 2016 and $17.1 million in 2017 from an undisclosed donor (or maybe two). It then turned around and used that money (and other contributions) to fight against the Supreme Court nomination of Merrick Garland in 2016 ($7 million) and for the nominations of Neil Gorsuch ($10 million), Brett Kavanaugh ($10 million) and Amy Coney Barrett ($10 million).

The group is linked to Leonard Leo, a top official at the Federalist Society, a conservative group that served as a pipeline for judges appointed by President Donald Trump.

In the 10-year period spanning from its 2010 filing with the Internal Revenue Service to its 2019 filing, the Concord Fund/Judicial Crisis Network reported more than $133 million in revenue, according to Anna Massoglia, editorial and investigations managers at OpenSecrets. “Just from mid-2015 through mid-2020, the group brought in more than $116 million in revenue,” she noted, with its most recent filing showing $20.4 million in revenue. (The group’s fiscal year runs July through June.)

Democrats had fiercely opposed the Citizens United ruling and at first decried dark money. But then they embraced it for fear of being outgunned. A liberal group called Demand Justice, run by former aides to Hillary Clinton and President Barack Obama, jumped into the fight over Kavanaugh. Then in the 2020 election, the 15 most active dark money groups associated with Democrats actually raised more money than the 15 most politically active groups aligned with Republicans, according a New York Times analysis.

In many ways, Demand Justice is a liberal dark-money equivalent of the Judicial Crisis Network. But until recently, it appears to have spent less than JCN. It had pledged to spend $5 million to fight Kavanaugh and $10 million to fight Barrett.

You will note that these numbers are much smaller than the billion dollars mentioned in the ad. That’s because JCN, to make the threat to conservatives seem larger, latched onto an organization called Arabella Advisors, tangentially connected to Demand Justice, and conjured up something it called an “Arabella judge.”

Arabella Advisors essentially provides back-office support, compliance assistance and grant-processing to liberal philanthropic and nonprofit groups, including groups incorporated, so they can received donations from undisclosed donors. The for-profit Arabella collected management fees worth nearly $50 million from groups that spent nearly $1.2 billion in 2020.

Some of these organizations have connections via personnel. For instance, Eric Kessler (no relationship to the Fact Checker) is founder and senior managing director of Arabella and also is listed in filings with the Internal Revenue Service as board chair (until mid-2021) of the Sixteen Thirty Fund and a former board secretary of the New Venture Fund.

Until recently, Sixteen Thirty, which raised $144 million in 2019, included Demand Justice as one of the dozens of organizations it funded. But Demand Justice was spun off and became independent in 2021. “A core part of our mission as a fiscal sponsor is to incubate new campaigns and organizations that will one day become independent and continue their work,” said Amy Kurtz, president of Sixteen Thirty, in a Medium post in November.

But the Judicial Crisis Network — which did not respond to queries — apparently thought it was more advantageous to lump together all the groups serviced by Arabella to make the financial stakes higher, even though the organization does not get involved in Supreme Court fights. Judicial Crisis Network tweeted that it is spending $2.5 million “calling out the liberal dark money network led by Arabella Advisors.” (Interestingly, Leo, in a 2020 interview with Axios, said he was stepping away from day-to-day running of the Federalist Society to create a conservative version.)

“The claims in this advertisement are false, and they deliberately mischaracterize the work of Arabella Advisors and several of our clients,” Steve Sampson, a spokesman for Arabella, told the Fact Checker. “Arabella Advisors is a consulting business that supports philanthropy. Our clients include a variety of nonprofit organizations that hire Arabella for shared administrative services. Arabella Advisors is not the source of funding for any of these organizations, and we do not exert control over the spending decisions of our clients. We do not work with Demand Justice, and we have nothing to do with the Supreme Court nomination process.”

American Rising Squared’s tweet at least just focuses on Demand Justice. But still, it’s another example of a conservative dark money group complaining about dark money. Its most recent filing reports nearly $2.6 million in revenue. (This group also did not respond to request for comment.)

Massoglia said she was not aware of any liberal dark money group explicitly complaining about dark money in this manner. The closest example she could cite was a Demand Justice YouTube video that claimed recent Supreme Court nominees were “installed through hyperpartisan political schemes.”

We can only marvel at the hypocrisy of these attacks. Perhaps the point is that only liberal dark money is a bad thing. But if these groups are going to air such complaints, they need to disclose they engage in the same practice of collecting huge sums of money without revealing donors. They earn an upside-down Pinocchio — which is ordinarily for flip-flops — for their hypocrisy.

Glenn Kessler has reported on domestic and foreign policy for more than three decades. Send him statements to fact check by emailing him, tweeting at him, or sending him a message on Facebook.