How do we figure out who is paying for political ads?
It’s election season again and that means ads in the mailbox, a deluge of ads on the television, and more candidate ads on social media. But who is responsible for these ads? Why are they spending money to try to influence your vote? What are they hoping to get out of it?
Step 1: Find the disclaimer. Is the ad paid for by a candidate or an organization?
Step 2: Attempt to “follow the money.”
- This is only easy if the ad was paid for by a candidate. Visit the Secretary of State’s site to see the contributions to the candidate.
- If the ad is paid for by an organization. These donations can be hard to follow. The Judge the Ads Project will do what we can to identify the source of funding, but it isn’t always possible. The Republican State Leadership Committee with its Judicial Fairness Initiative has pledged to make “record investments in 2022 state supreme court races” including Ohio but there may be other groups that buy ads or ad time.
Step 3: Get to know that candidates and encourage your friends and family to assess the ads as much as possible.
Step 4: Transparent elections reduce corruption and create greater accountability. Support the disclosure of political dollars. Legislation like House Bill 13 designed to shine a light on dark money is stalled in committee in the Ohio House. On July 19, 2022, the US Senate Committee on Rules and Administration held a hearing on the Disclose Act.
Spending in the 2022 Ohio Supreme Court races is expected to reach an all-time record. Individuals and organizations can make campaign contributions to judicial candidates, just like they can to any other candidates.
Total direct contributions are expected to add up to millions in this year’s Ohio Supreme Court races. And that doesn’t even include the “independent expenditure” money spent by outside groups on advertising for or against judicial candidates. Unfortunately, this money is harder to track, because it doesn’t have to be reported to the Ohio Secretary of State. This “dark money” or secret money can play a pivotal role in Supreme Court elections.
In 2019 and 2020, roughly $97 million was spent in all state supreme court races nationally. It’s not clear to experts how much is likely to be spent this year but it’s likely as much as $10 million dollars will be spent this year on ads for and against candidates for justice of the Ohio Supreme Court. That’s a lot of money to spend without expecting something in return. It makes sense to “follow the money” and try to find out who is paying, and what they might be hoping to gain.
Find the Disclaimer
Let’s take some time to learn how to judge the ads and follow the money! Your first step is to look at the “disclaimer” that explains who paid for the ad. This will tell you whether the ad is paid for by the candidate, a political party, or an organization. In the example below, the ad supporting Judge Doe was paid for by “Ohioans for Serious Justice.” That tells us that the candidate’s campaign didn’t pay for it. But who are the “Ohioans for Serious Justice”?
If the ad is paid for by a candidate committee, political party or political action committee (PAC), you can find contributions and donor information on the Ohio Secretary of State’s website.
This ad clearly wasn’t paid for by Judge Doe’s campaign, a political party or a PAC. But you might search for the name shown in the disclaimer and find nothing. Search engines can reveal an enormous amount of information, but some organizations that fund political ads are (purposefully) less than transparent.
One reason it can be hard to track the source of commercials or political ads is because of a 2010 US Supreme Court decision known as Citizens United v. FEC. In this famous case, the Court determined that corporations have the right to pay for political ads as long as they aren’t coordinated with candidates. Under law, corporations cannot contribute directly to candidates, but the court determined that corporations—including nonprofits—have First Amendment rights (free speech) and therefore must be allowed to “speak” through political ads.
Because corporations are worried about possible adverse reactions and their bottom line, when paying for political ads, they often prefer to shield their identity. They may opt to hide behind a series of shell corporations and complex financial maneuvers in order to make it intentionally difficult to see who’s paying for what. And, while it is constitutional to require ads to include information on who paid for them (known as “disclosure”), the Ohio General Assembly and Congress have failed to pass strong disclosure rules that would help us “follow the money” to its original source.
In addition, wealthy individuals sometimes prefer to operate in secrecy. This has led to the creation of nonprofits such as 501(c)(4)s that are able to keep the list of their donors private. This makes “following the money” much more difficult.
Because only campaigns, political parties and PACs have to file with the Ohio Secretary of State, it can be hard to figure out who is paying for all the other ads. The money behind these advertisements is often called “dark money,” or secret money in elections because the source is hidden. Dark money groups can give to other dark money organizations, further complicating the ability to figure out the original source.
The Brennan Center for Justice at New York University’s Buying Time project has been tracking political ads in judicial races for more than 20 years. According to their analysis, it has become increasingly difficult to identify who is paying for these advertisements.
What is Dark Money?
Long before the secret source “Deep Throat” famously told investigative journalists Woodward and Bernstein to “follow the money’’ during the Watergate scandal, politicians and special interests have been concocting new ways to make it harder to even find the money. In 2010, the money-hiders won a huge victory in the form of a court ruling, Citizens United v. FEC, that created loopholes in campaign disclosure rules. The 5-4 ruling allowed corporations, including labor unions and nonprofits, to spend unlimited amounts to indirectly support or oppose political candidates—they still aren’t allowed to donate directly to candidates. These changes soon gave rise to politically active nonprofits—commonly called “dark money” groups—because they intentionally are structured as vehicles for anonymous political spending.
Government watchdog groups, and even top law enforcement officials, have pointed to the evils of dark money. In July 2020 when the FBI announced indictments in its public corruption case in Ohio, then-U.S. Attorney David DeVillers called dark money “a breeding ground for corruption,” and he told a news conference that even the FBI needed subpoenas to trace the millions in alleged bribes through a tangle of nonprofits and other dark money groups with innocuous names such as “Generation Now” and “Partners for Progress.”
According to the FBI, a web of politically active nonprofits and other dark money groups helped to install Larry Householder as House Speaker while at the same time he helped facilitate passage of a $1 billion corporate bailout pushed by Akron’s FirstEnergy. Although most of the FBI targets of the on-going investigation are Ohio Republicans, the Justice Department began the case under Republican President Donald Trump.
The two most common vehicles for dark money in politics are politically active nonprofits and corporate entities such as limited liability companies, explains the Center for Public Integrity. Some nonprofits—notably those formed under sections 501(c)(4) and 501(c)(6) of the tax code—are generally not required to publicly disclose their donors. Meanwhile, when limited liability companies are formed in certain states, such as Delaware and Wyoming, they are essentially black boxes; the company’s name is basically the only thing known about them. These LLCs can be used to make political expenditures themselves or donate to super PACs.
Dark money groups are increasingly being used in judicial elections that reshape courts and threaten the impartiality of state supreme courts across the country, according to the Brennan Center. The Brennan Center publishes extensive research on the effects of dark money in politics, including its impact on state and local elections, risks to judicial independence, and the threat of foreign funds in U.S. elections.
How Dark Money Works
Dark money or secretly funded groups often succeed with aggressive and misleading TV commercials, online ads, and mailers that barrage voters with political messages.
Most have innocuous names that offer few clues about their true mission. In 2020, for example, “Ohioans for Judicial Integrity” weighed in, attempting to keep the Ohio Supreme Court in Republican control. That same year, the Super PAC “Ohioans for Justice and Integrity” spent money to try to elect Democrats to Ohio’s high court. Since it’s hard to argue against “judicial integrity” or “justice and integrity,’’ especially without knowing who funded the groups, voters had trouble determining the credibility and motives of the wealthy funders trying to influence the elections. In the end, Ohio elected one Democrat and one Republican justice, narrowly keeping the court in GOP control. Only after the election, when an internal memo surfaced, did we learn that the pro-Democrat Super PAC spent $1.5 million and its main funders included public sector unions, the Ohio Progressive Collaborative, and the National Education Association.
In 2022, the Progressive Collaborative is expected to again help fund a dark-money effort to try and win high court races, hoping Democrats can take control of the Supreme Court. The Ohio Chamber of Commerce, which endorsed all three GOP court candidates, plans to spend $4 million to try and preserve the court’s Republican majority, President Stivers told Reuters. “The court hangs in the balance,’’ Stivers said. “You can have a pro-business governor, a pro-business legislature, and if you have the wrong four people on the Supreme Court, you can go backward every day.’’
Check out these Frequently asked questions about Dark Money on the Center for Public Integrity website.
Legislation designed to shine a light on dark money is stalled in committee. Let your State Rep. know that you support transparent elections!
History of Secret Money in Ohio Supreme Court Races
Even before Citizens United v FEC, Ohio saw one of the nation’s most expensive and most aggressive court races in 2000. The insurance industry and the Ohio and U.S. Chamber of Commerce attempted to unseat Justice Alice Robie Resnick, a Democrat, with a dark money group, Citizens for a Strong Ohio. The campaign’s centerpiece was a TV ad featuring a statue of Lady Justice who came to life and peered under her veil to see who was placing stacks of money on her scales of justice. The ad infuriated Democrats and legal scholars for suggesting that Justice Resnick traded votes for campaign contributions. Resnick handily won re-election, and the Ohio Elections Commission ruled that both the U.S. and Ohio Chambers of Commerce broke the state’s election law by illegally using corporate money. Even though the Lady Justice ads did not specifically urge people to vote against Justice Resnick, the Commission determined they constituted political ads.
As the appeals continued, the Alliance for Democracy and Common Cause of Ohio, two non-profit organizations opposing corporate influence on government, sought the donor list for the advertisements and eventually won their release. Ohio Supreme Court contests have invited controversy—and large contributions—ever since.
In 2014, Justice Judith French received criticism for describing the court as the “backstop” for bills passed by the conservative legislature—comments that some saw as her predisposition to side with the GOP. Justice French won re-election with a campaign bolstered by about $600,000 from American Freedom Builders, a dark-money 501(c)(4) group closely tied to former Ohio Gov. John Kasich. In her 2020 re-election, Justice French again attracted criticism and dark money, this time with help from Karl Rove, the GOP gun-slinger credited with helping George W. Bush become President. In a fundraising letter to Republican donors and law firms, Rove warned that “well-funded left-wing interest groups from outside Ohio” are vying to unseat French in order to redraw the lines of state legislative and congressional districts to benefit Democrats, the AP reported.
When reporters asked Rove about his 2020 help for Justice French, he made it clear that his fundraising was unrelated to his work for the Republican State Leadership Committee (RSLC), a national dark money group whose board he had joined. Still, RSLC was airing negative television ads against then-candidate Brunner at the same time, one of which the Ohio State Bar Association asked the RSLC to pull down for being misleading, according to The Plain Dealer. The ad suggested that Brunner put the safety of children at risk when she ruled that police conducted “an unreasonable’’ search at the home of a man accused of sex crimes. “To suggest that Judge Brunner’s decision makes her ‘reckless’ or that she somehow ‘risks our children’s safety’ is misleading,’’ the bar association wrote to the RSLC.
That same year, the Ohio State Bar Association also sent a letter to Democrats critical of one of their ads, saying it “implies that contributions from ‘special interests’ influence how Justice Judith French and Justice Sharon Kennedy have and may rule in cases before them.’’ The ad criticized French for her 2016 ruling, joined by Kennedy, that held the state limit of $350,000 on pain-and-suffering damages applied to sexual assault victims, disallowing a jury award of $3.5 million to a 15-year-old girl raped by her Delaware County pastor and for which church officials were found liable, The Columbus Dispatch reported.
The RSLC targets state Supreme Court races with its Judicial Fairness Initiative and pledged to make “record investments in 2022 state supreme court races.’’ The announcement followed a report by the groups that said Democrats spent heavily in three states – including Ohio “to install liberal judges in their favor in redistricting cases.’’ The report did not mention that Ohio’s Republican chief justice joined three Democrats in tossing out a series of unconstitutional, badly gerrymandered congressional and state legislative district maps. Brunner, a Democrat, is running for chief justice this year against Republican Justice Kennedy and RSLC’s Judicial Fairness Initiative announced that Ohio’s high court contests are among those it plans to target this year. RSLC’s major funders include the Judicial Crisis Network, Koch Industries and the US Chamber of Commerce.
Karl Rove knew Ohio’s Supreme Court would have a big say over legislative and congressional districts. Naturally, Republicans want Ohio to maintain districts as pro-GOP as the current ones.
As Rove said in his letter supporting French, “With that court’s conservative majority again up for grabs in 2020, every conservative voter in Ohio must join the fight,” Rove wrote, describing French as “a hard-working conservative with a heart for service.”
“Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”U.S. SUPREME COURT’S CITIZENS UNITED
Karl Rove worries about t”he Ohio Supreme Court’s political makeup. Maybe Ohioans should, too. Trouble is, many won’t, partly because Ohio’s judicial ballot is voter-unfriendly, so voters skip it.
Drop Off in Judicial Races
In 2016, more than 5.5 million Ohioans voted for Donald Trump or Hillary Clinton or someone else for president. Also on 2016’s ballot: Two Ohio Supreme Court contests.
But just 4.3 million (80%) of the Ohioans who voted for president also voted in one of the Supreme Court races; and just 4.07 million presidential voters (74%) voted in the other Supreme Court contest. That’s called drop-off. The cause: Back then, Ohio’s ballot didn’t list a judicial candidate’s party affiliation. And campaign rules don’t let judicial candidates say anything worth remembering.
The civics book may say party affiliation doesn’t matter. Tell that to GOP presidents who nominate Republicans to the U.S. Supreme Court and Democratic presidents who nominate Democrats.
Because prior to this year, Ohio’s judicial ballot did not cue voters to a candidate’s party, candidates sometimes won, thanks to a “good” last name. “Brown” has been a winning name in the past; “Kennedy” is another.
Another reason for voter drop-off in judgeship elections: Voters might not realize how much power Ohio’s Supreme Court has over checkbooks (utility rates); insurance claims; Ohio families (divorce, custody, child support, adoption); life or death (death penalty cases) and—oh yes—politics: Whether Ohio General Assembly majorities (Democratic or Republican) can keep getting away with tilting congressional and General Assembly districts to favor one party over the other.
Ohio’s Supreme Court is now composed of four Republicans and three Democrats, and this year’s contests could change that.
Actions we can take
Dark money is a difficult problem to tackle, but there are things we can do.
- Make sure you (and your friends and family) are all registered to vote! You can register to vote, check or update your registration here.
- Be an educated voter! Use the “Preparing for Elections” section of this website to research judicial candidates. Talk to your family, friends, and neighbors about the importance of voting for judges and share this information with them.
- Don’t be a passive consumer of political advertisements. Follow the money as much as you can to see who is trying to influence your vote.
- Support legislation to reign in the impact of dark money.