‘Dark money’ groups gear up for Supreme Court battle as 2020 election nears

supreme court
Screenshot of Demand Justice ad “Donald Trump has hijacked our Supreme Court.”
Captured via YouTube

“Dark money” groups are projected to spend tens of millions of dollars on the battle over Justice Ruth Bader Ginsburg’s seat on the Supreme Court, raising the stakes — and likely the cost — of an election cycle that is already seeing record-breaking cash flow. 

Even before President Donald Trump’s announcement that he will appoint a woman to fill the open Supreme Court seat, multiple outside groups weighed in on the projected nomination in the days following Justice Ginsburg’s death.  

Judicial Crisis Network, a dark money group that operates as the preeminent vehicle for deep-pocketed conservative donors to funnel millions of dollars into Supreme Court confirmation fights, announced a $2.2 million ad blitz through Axios on Monday. The ad pushes for a confirmation vote before Election Day 2020 and is expected to target Colorado, Iowa, Maine, North Carolina, Utah, and Washington, D.C.

Judicial Crisis Network’s recent spending was largely bankrolled by a single $16 million donation from a secret donor and another secretly-funded $17 million donation in 2017. In both cases, Judicial Crisis Network took the money from a closely-tied dark money group that is also funded almost exclusively by multimillion-dollar anonymous donors. But that group shut down and Judicial Crisis Network’s operation recently restructured, leaving even more questions about the source of funding its new multimillion-dollar ad blitz unanswered. 

Carrie Severino, Judicial Crisis Network’s president, told CNBC on Saturday that the conservative dark money group aims to “match” and “surpass” the $10 million in spending pledged by their liberal counterpart, Demand Justice.

Launched by dark money behemoth Sixteen Thirty Fund in 2018 as the left’s counterweight to Judicial Crisis Network in Supreme Court confirmation fights, Demand Justice quickly established itself as the left’s top dark money spender in the Kavanaugh confirmation fight and announced it would invest $10 million into the fight over Ginsburg’s seat.

But Demand Justice may not be Judicial Crisis Network’s only competition. 

The day after Ginsburg’s death was announced, a group called Fix Our Senate released its first ad about the Supreme Court vacancy. The ad uses Senate Majority Leader Mitch McConnell’s words against him, urging voters to press their Senators to treat any Supreme Court nominee like Merrick Garland.

But Fix Our Senate isn’t exactly new. In fact, incorporation records reviewed by OpenSecrets reveal that it is a project of Sixteen Thirty Fund, information Fix Our Senate does not publicly divulge on its website or in its digital ads.

Operating as a 501(c)(4) nonprofit, Sixteen Thirty Fund is a dark money group that steers money from secret donors to projects it fiscally sponsors, effectively letting them operate without a papertrail. Sixteen Thirty Fund projects include the left’s top spender in the Kavanaugh confirmation fight, Demand Justice.

Supreme Court Voter, which calls itself a project of Demand Justice, launched a $2 million digital advertising campaign in July targeting competitive states in an attempt to mobilize voters around the idea that the 2020 election will impact the federal judiciary for years to come.

Different branding gives the appearance that the initiatives’ messages stem from multiple different organizations when, in actuality, they are legally one in the same. 

Because Sixteen Thirty Fund acts as the fiscal sponsor to so many operations with varying levels of politicking, its political operations dilute the portion of the organization’s overall activities that are considered political. A generally accepted rule of thumb is that 501(c)(4) nonprofits are not allowed to devote more than half of their activities to political purposes but the lack of bright-line rules established by the IRS has created substantial holes in disclosure. This tactic enables initiatives operating under the Sixteen Thirty umbrella to engage in a level of political activity that might not be possible if they operated as separate tax-exempt nonprofits.

Sixteen Thirty Fund is also pouring millions of dollars into political contributions. 

FEC filings covering the last two months reveal more than $7 million in contributions to political committees with $2 million to Pacronym, $3.5 million to Change Now PAC, $100,000 to Unite the Country and $1.5 million to Future Forward USA

Sixteen Thirty Fund funneled more than $32 million into contributions to political committees like super PACs during the 2020 election cycle, according to FEC filings submitted through Sept. 20.

“The Sixteen Thirty Fund is confronting the biggest social challenges in our country including the Supreme Court and the election through fiscal sponsorship, advocacy and electoral action,” Sixteen Thirty Fund executive director Amy Kurtz told OpenSecrets by email, noting that they are “committed to following the current laws to level the playing field for progressives.”

Super PACs and other outside spending groups are legally required to disclose their donors.  But those PACs have taken around $200 million in contributions from opaque entities including shell companies and nonprofits that don’t disclose their donors during the 2020 election cycle. That’s a new record for the amount of dark money flowing into federal races through contributions to political committees like super PACs.

The 2020 election cycle has seen record dark money contributions to super PACs and a record number of dark money ad airings compared to prior election cycles, according to research by the Wesleyan Media Project in partnership with OpenSecrets. 

Dark money spending is generally more common early in the election cycle, before the Federal Election Commission’s disclosure window requiring issue ads to be reported to the FEC during the 60-day period before Election Day. But a Supreme Court confirmation fight is a gamechanger projected to usher in tens of millions more in dark money spending on SCOTUS-themed issue ads boosting or attacking congressional incumbents and presidential candidates without explicitly calling for their election or defeat.

Sept. 26, 2020: This post has been updated to incorporate comments from the Sixteen Thirty Fund.

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About The Author

Anna Massoglia

Anna first joined the Center for Responsive Politics in September 2015. She works with CRP's foreign influence and FARA data as part of the Foreign Lobby Watch Project, tracks FCC and digital political ad data, and is responsible for CRP's politically active nonprofit and nondisclosing "dark money" group data. She holds degrees in political science and psychology from North Carolina State University and a J.D. from the University of the District of Columbia School of Law.