Dark Money Invades Our Politics, Part Infinity

Lawmakers across the country introduced and debated dozens of bills during this year’s legislative sessions that would close or limit public access to a wide range of government records and meetings, according to a review by The Associated Press and numerous state press associations. Most of those proposals did not become law, but freedom-of-information advocates in some states said they were struck by the number of bills they believed would harm the public interest, and they are bracing for more fights next year. Nebraska lawmakers debated whether to keep secret the identity of the suppliers of lethal-injection drugs used in executions. The California Legislature rushed through a measure that shielded from the public the emergency action plans required for potentially unsafe dams - an idea that arose after nearly 200,000 people were forced to evacuate following a spillway failure at the state’s second-largest reservoir. Texas again considered a plan that would effectively shut down its public records law to any requesters who live outside the nation’s second most populous state.

In Iowa, the House passed a bill to shield the audio of many 911 calls by declaring them confidential “medical records” after the AP used the open-records law to expose a series of gun-related accidents involving minors in one rural county. The plan died in the Senate after it was detailed in news reports, and media and civil rights groups raised objections. Days later, the potential impact of the bill became clear when a beloved state celebrity, farmer Chris Soules of “The Bachelor” fame, was charged with leaving the scene of a deadly accident. A 911 call that would have remained confidential under the bill painted a far more sympathetic picture of Soules’ actions, showing he immediately reported the crash and sought aid for the 66-year-old victim. Iowa lawmakers succeeded in passing another anti-transparency bill, approving unprecedented secrecy for the state’s $1 billion gambling industry by closing access to the detailed annual financial statements of the state’s 19 licensed casinos. Those records had been public for decades. The change came in response to lobbying from casinos, which had objected to a request from an out-of-state competitor for the records by claiming they contained proprietary information.

Kansas lawmakers proposed a bill that would keep the state database of fired police officers secret after Wichita television station KWCH exposed how some cities were hiring officers with checkered pasts, including a chief facing a federal investigation after being fired three times. The bill, which was backed by the state’s law enforcement training agency, stalled after the station’s news director warned lawmakers it would make government “less open, less transparent” around the critical issues of police misconduct and public trust. In Arkansas, a request for seemingly innocuous information became the catalyst for the sweeping bill passed earlier this year that exempts all “records or other information” held by universities that, if released, could potentially harm public safety.

Supporters of the exemption for the Arkansas Capitol Police said it was needed because the news media had written in 1998 about secret plans to allow former Gov. Mike Huckabee to escape his office by climbing a ladder into an abandoned elevator shaft. The disclosure caused the state to delay and modify the escape route, which was completed in 2001 and later shown to reporters by the governor’s staff. The new law gives the agency wide authority to keep secret any records related to security at the Capitol and governor’s mansion.

For example, the State Policy Network (SPN) sponsored an ALEC workshop at the annual meeting. It was entitled "Protecting your constituents from harassment: How to stop bureaucrats from targeting and harassing people based on their First Amendment beliefs." SPN links together all of the right-wing think tanks now in every state. The Kochs and other billionaire allies fund SPN.

SPN handed out a single "how to" sheet that encouraged state lawmakers to resist ethics bills and dismantle government entities charged with enforcing ethics codes (like Wisconsin's independent, nonpartisan Government Accountability Board). SPN also instructed legislators to defeat or repeal anti-corruption legislation. That includes donor disclosure laws and any regulation of phony "issue ads" that, while not using the magic words "vote for" or "vote against" words, are clearly designed to influence who wins elections. Appearing at ALEC to make the case that any attempt at clean, transparent, and open government is a violation of individual First Amendment speech rights was none other than Eric O'Keefe. As he tells it, the mischief started when the legislature created the "left-wing" Government Accountability Board (GAB). The state's representatives launched the GAB after an explosive discovery of widespread corruption and on a strong bipartisan basis. And it was actually an independent watchdog governed by retired judges tasked with monitoring ethics and campaign finance laws. In O'Keefe's distorted reality, special prosecutors specifically and illegally targeted conservatives who were running "effective" organizations. Never mind that a court oversaw and sanctioned this investigation and that two of the district attorneys involved were Republicans. As many will remember, part of this dark money included a $700,000 "donation" to Wisconsin Club for Growth from Gogebic Taconite. That's the company that wanted to rewrite Wisconsin's mining laws.

In media appearances and public forums, Trainor has made the case that the Federalist Papers succeeded in promoting the ratification of the Constitution because Founding Fathers Alexander Hamilton, James Madison and John Jay wrote them under the pseudonym Publius. And he appeared to erroneously suggest that the Supreme Court's 2010 Citizens United decision endorsed anonymous political contributions. “The reason [the Federalist Papers] were published anonymously is because they wanted the effectiveness of their ideas to win, not who was saying it to win the arguments,” Trainor said during a March appearance on a conservative webcast. “And ultimately that’s what Citizens United has decided, and why it’s just such a terrible idea to have that rolled back.”

In fact, the Supreme Court upheld the concept of donor disclosure in Citizens United v. FEC, which allowed corporations to spend unlimited sums on independent political activity. “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages,” the majority wrote. James A. Gardner, a professor at the University at Buffalo School of Law who specializes in election law, said that “the court has said repeatedly that disclosure of the identity of donors improves the quality of electoral decision-making by informing voters who supports candidates, and thus to whom they may be beholden.”