Several years ago, Kert Davies, then a research director for Greenpeace, complained that secret funds, or “dark money,” was behind the opposition to then-President Barack Obama’s efforts to combat climate change. Davies argued this dark money powered the climate “denial machine.” This ominous source of funding was claimed to be responsible for blocking congressional action on Obama’s climate agenda.
The media seems to be filled with stories about the danger of dark money and how conservatives are using it to thwart the democratic process. In September, the Kansas City Star published an article raising the specter that conservatives used dark money to support the election campaign of Eric Greitens as governor of Missouri. But it is not just election campaigns that raise the issue. That same month Politifact published an article asserting that “millions in dark money has been spent to tilt the courts right.” The idea behind these articles is that corporations or conservative groups are unfairly using so-called dark money to hide the source of support for candidates or public policies.
It turns out, however, that left-leaning groups are just as likely to use dark money to promote their policies, from opposition to President Trump’s picks for the Supreme Court to opposition of a GOP senator from Arizona. And when the donors to these dark money organizations are finally revealed, there are often some surprises. In New Jersey, for instance, the public school teachers’ union turned out to be the largest donor to a dark money group supporting the governor’s call for new taxes.
There is more than a little fearmongering regarding dark money when it comes to the issue of climate change. Democratic Rhode Island Sen. Sheldon Whitehouse recently introduced a bill to require disclosure of donations to nonprofits, claiming fossil fuel companies are hiding their opposition to climate change laws behind dark money groups. Whitehouse has also taken aim at business trade groups, claiming that they are the source of the dark money that opposes his plans to address climate change.
Davies, who was noted above as one of the warriors battling what he saw as the scourge of dark money, is back in the news again. This time, however, he appears to have switched sides in the dark money debate. Davies is now director of Climate Investigations Center, which bills itself as a fossil fuel industry watchdog. As director of the center, Davies still rails against secret fundings and dark money when it finances his political and policy opponents. A recent complaint filed with State of Maryland charges, however, that Davies is not so willing to comply with disclosure laws for other organizations that he directs.
Davies is listed as the director of Climate Communications and Law. Although the group claims a business address in Maryland, the complaint alleges that it has not registered with the state as required by state law. Another member of the organization argues that the group does no business in Maryland (despite its Maryland address) and is therefore not required to follow Maryland laws requiring registration.
The Maryland registration requirements are not onerous. They simply require disclosure of financial statements so that donors can see how their money is being spent. Yet for some reason, Climate Communications and Law is resisting disclosure of even the minimal amount of information required by Maryland law.
Despite its refusal to register as a charity in Maryland, Climate Communications and Law is very active in the climate change policy debates. If Davies and others such as Whitehouse were truly concerned about dark money and public disclosure, then Climate Communications and Law appears to be the type of group that should register and follow legal disclosure requirements.
Many business entities and charities find state and federal disclosure requirements burdensome and expensive. Disclosure laws not only give the public information about who is making a policy argument, they are also used by activists to target donors to the charities. Nonetheless, one would think that organizations that battle against the perceived dangers of dark money would be anxious to comply with state registration laws. In the case of Climate Communications and Law and its director, Davies, it appears to be a case of disclosure for thee, but not for me.
Anthony Caso is the Director of the Claremont Institute’s Constitutional Jurisprudence Clinic at Chapman University, Fowler School of Law.
