Transparency in campaign finance allows voters to consider the source behind political messages.

It raises the essential questions:

• What do the people funding these ads want from voters?
• What groups or interests do the ads seek to benefit?

When voters know who is spending money to influence their decisions, they can make more informed choices. Transparency fosters accountability and helps guard against corruption. Yet in recent years, uncovering this information has become increasingly difficult.

It was not always this hard. In the past, voters and journalists could trace political money through public filings with the Secretary of State or the Federal Election Commission. That changed with the 2010 U.S. Supreme Court’s Citizens United v. FEC decision, which dismantled key campaign finance laws and opened the floodgates to secret, unlimited spending by corporations and billionaire-backed political nonprofit organizations.

Citizens United ushered in the era of “dark money”—political spending by groups that are not required to disclose their donors. These groups often include 501(c)(4) nonprofit organizations or 527 political organizations that obscure where their money comes from and what their funders want.

Even though Super PACs are legally required to disclose their donors to the Federal Elections Commission, they can receive money from dark money groups, effectively hiding the true source of their funding. These opaque financial structures make it extraordinarily difficult to “follow the money.” In addition, right-wing donors are increasingly using donor-advised funds (DAFs)—like DonorsTrust or Schwab Charitable—as pass-throughs to obscure funding sources even further.

Dark money is a threat to our judicial system. It is not just a problem in legislative or presidential races—it is reshaping judicial elections, including those for state supreme courts. When wealthy individuals and interest groups spend millions to influence who sits on the bench with no real transparency, judicial independence is at risk.

Many of those spending money on ads in judicial races have economic interests that may come before the court. Although 2009’s Caperton v. A.T. Massey Coal Co. determined judges shouldn’t hear the cases of those who substantially supported their campaigns (including major donors to political advertisements), the public is unlikely to be able to track these political dollars. And in Ohio, judges are not required to recuse themselves from the cases of their contributors or those who financially support their election. This creates the potential for serious conflicts of interest that can erode public trust in the judiciary.

• Stronger disclosure laws: Nothing in the Citizens United v. FEC decision prohibits federal or state officials from requiring disclosure of the funders of political ads or electioneering communications. In fact, at the time that Citizens United was decided, the court overwhelmingly (8-1) supported transparency and the ability to “follow the money.” Justice Anthony Kennedy writing for the majority stated: “… prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “in the pocket” of so-called moneyed interests… This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
• More real-time reporting of political spending to the Ohio Secretary of State and the Federal Elections Commission. If voters were able to explore political ad spending before the election, they would have the information they need to ask more questions enabling them to be more critical judges of the advertising they see. Timely campaign finance reports would allow voters to question what major donors might be seeking by trying to elect certain candidates.
• Mandatory recusal rules for judges. This would ensure that judges aren’t hearing the cases of their contributors and those who support them through independent expenditures. Ohio should adopt common sense recusal rules similar to those recommended by the American Bar Association.
• Greater public awareness of the role dark money plays in shaping courts. Voter guides should encourage the public to examine political disclaimers and encourage voters to question who is funding political ads.

The judiciary should be a place of impartiality, not influence. As dark money continues to flood judicial elections, particularly in states such as Ohio, the fight for transparency and accountability has never been more urgent.

Research was provided by True North Research. Thank you to executive director Lisa Graves, and researchers Evan Vorpahl and Caitlin Mahoney for their invaluable assistance.

Support was provided by the Piper Fund, an initiative of the Proteus Fund, and we would like to thank program officer Kathy Bonnifield for her leadership on fair courts in Ohio and nationwide.

The report was written by Catherine Turcer, Common Cause Ohio executive director, Jessica Dickinson, Ohio Fair Courts Alliance manager, and Mia Lewis, Common Cause Ohio associate director.