Starting tomorrow, donors to political “dark money” groups were no longer going to be able to remain anonymous thanks to a longstanding Federal Election Commission practice being invalidated by the D.C. District Court. But on Saturday Supreme Court Chief Justice John Roberts granted an emergency motion on behalf of Karl Rove’s 501(c)4 non-profit, Crossroads Grassroots Policy Strategies, that halts the lower court’s ruling.
Earlier on Saturday, a panel from the D.C. Circuit Court heard the arguments for Crossroads GPS’s emergency motion but rejected it. In their denial, the judges noted that Crossroads GPS “has not satisfied the stringent requirements for a stay pending appeal.” Hours later, Chief Justice Roberts granted that same motion, which halts the district court’s ruling until an appeal can be heard.
FEC commissioner Ellen Weintraub responded to the news that dark money would, at least for the time being, continue to remain anonymous on Twitter by remarking simply: “Nice while it lasted”.
When the district court’s ruling was passed in early August, Citizens for Responsibility and Ethics in Washington (CREW), the group that brought the original lawsuit against Crossroads GPS, called it a “major game changer” in a statement. “Based on this ruling, the public should know a whole lot more about who is giving money for the purpose of influencing an election, and it will be much harder for donors to anonymously contribute to groups that advertise in elections,” said CREW’s executive director, Noah Bookbinder, at the time.
CREW’s original lawsuit was filed against the FEC in response to Crossroads GPS keeping its donors anonymous in its effort to defeat Sen. Sherrod Brown of Ohio in 2012. Crossroads GPS used independent expenditures in its campaign, a type of federal spending that is not supposed to be coordinated with any candidate. Because independent expenditures are not subject to contribution limits like contributions directly to a candidate, they are a favorite tool of dark money groups.
“The lower court’s ruling would have created a path for new requirements that all ‘dark money’ groups that spend at least $250 in independent expenditures to report every donor who gave at least $200 in the past year,” Anna Massoglia, a researcher at Center for Responsive Politics, told Sludge. “While independent expenditures make up a significant portion of ‘dark money’ spent in elections—accounting for more than $733 million in since the Supreme Court’s Citizens United decision came down in 2010—additional reporting requirements focused solely on independent expenditures may have still left loopholes for ‘dark money’ to be funneled into elections through other channels such as ‘issue’ advocacy reporting.”
Such issue advocacy spending from dark money has been in the news around the Supreme Court lately, as the nominations of both Justice Neil Gorsuch and nominee Brett Kavanaugh were backed extensively by the Judicial Crisis Network, a conservative advocacy group. The ruling that Chief Justice Roberts stayed would not have impacted such spending.
The question now is how long will Roberts’ stay be in effect. It was not immediately clear over the weekend if it was intended to be a temporary measure or if it is meant to keep the old FEC rules in effect at least until the midterm elections. SCOTUSBlog noted on Sunday morning: “Roberts could have referred the request to the full court, as justices often do, but instead he opted to act alone, in a brief one-sentence disposition that indicated that the district court’s decision was ‘stayed pending further order of the undersigned or of the Court.’”