Tuesday, May 24, 2016

This is our inaugural blog post in our new Politics in Pop Culture series, where we’ll critique Hollywood’s take on politics and campaign finance. Have a tip, question, or suggestion for a future post? Let us know @GoberGroup

This blog post was written by Karen Blackistone Oaks, a partner with The Gober Group. She specializes in advising clients that are engaged in multi-faceted, multi-million dollar policy campaigns that incorporate a wide range of advocacy strategies.

Pop culture loves to talk about politics and campaign finance issues are playing an increasing role and contributing to more plotlines on television, in books, and in movies. Unfortunately, Hollywood’s take on campaign finance is about as accurate as its take on most things in life. True: crooked politicians who break laws do exist. But campaign finance law is complicated. So, in the interest of a more educated political discourse, we’re breaking down some of the campaign finance myths streaming to a tablet near you.

The May 12, 2016, episode of NBC’s “The Blacklist” entitled “Alexander Kirk (No. 14)” centered on The Blacklist team trying to steal money from a donor to a presidential candidate. Here’s what the show had to say about the donor, the campaign, the candidate—and how it got almost all of it wrong.

The episode starts by explaining, “Alexander Kirk is the sole funder of a 501(c)(4) Super PAC.” First of all, a “501(c)(4) Super PAC” is not a thing, it’s a mix of two very different things. You could have both a 501(c)(4) AND a Super PAC, but each one would operate under a separate set of rules and regulations. One of these entities—the Super PAC—is structured to elect or oppose candidates and reports every dime it takes in. The other entity—the 501(c)(4)—promotes the social welfare (and although it does not publicly disclose its donors, most of its spending must be unrelated to an election).

The sole funder of The Blacklist’s fictional “501(c)(4) Super PAC” is a man named Alexander Kirk, a “Russian oligarch.” Another glaring inaccuracy here is that foreign nationals are prohibited from making a contribution or an expenditure in connection with any federal election, state election, or election for dog catcher – not to a PAC, not to a candidate, not to a 501(c)(4) that is supporting a candidate – unless they have permanent lawful status in the United States. We can presume that Mr. Kirk does not have permanent lawful status; otherwise, the show would be boring.

The show also claims, in reference to the money in this “501(c)(4) Super PAC,” that “it’s all dark money.” Dark money is a colloquial way of describing money used to influence an election that is not publicly disclosed. Super PACs, however, are required by law to publicly disclose their donors – every contributor who gives more than $200 is publicly disclosed on the FEC filings. Not exactly “dark.”

One character also explains that they “don’t know” how much money the Super PAC has. But Super PACs file campaign finance reports with the Federal Election Commission showing exactly how much the PAC takes in and spends, and other information like its cash on hand and debts owed. Their itemized expenditures include the date, amount, payee, and purpose of the transaction. Fact is, you would know exactly how much money a Super PAC has—at least how much it had as of the close of books on its most recent campaign finance report.

Our protagonists decide to take action. They will “steal [presidential candidate] Diaz’s money.” Mr. Reddington (played by James Spader) deadpans “rob[] the next president of the United States; [t]his is going to be a gas!” The trouble is, money in a Super PAC or 501(c)(4) does not belong to the candidate or even to the original donors. The candidate can’t control how it is spent or coordinate the spending with the Super PAC. It’s not the candidate’s money.

“That’s how he likes his contributions . . . big, dark, and anonymous.” The Senator appears at a fundraiser where “big, dark, and anonymous” contributions are being solicited. A candidate can appear at a fundraiser for a Super PAC or a 501(c)(4), but he cannot be there when they are asking for the “big, dark, and anonymous” contributions. In fact, the candidate can only ask people (individuals, not corporations) to contribute up to $5,000. Once the candidate leaves, someone else could make a pitch for the larger contributions, but not while the candidate’s there.

“You wrote me a $50,000 check,” candidate Diaz says. While someone could write that sizable a check to a Super PAC (which the candidate is legally prohibited from accepting or soliciting), no one can legally write a federal politician or their campaign a $50,000 check.

The action closes when Diaz is told “you get your money back—laundered through anonymous contributions to the PAC of your choice.” Unfortunately for the writers of The Blacklist, but good for us all, it doesn’t work that way. PACs are legally prohibited from accepting anonymous contributions over $50; $300,000,000 is a lot of $50 anonymous contributions. And, again, PACs must disclose the identity of any donor who gives more than $200 total per year. So the idea that a PAC (Super or otherwise) can accept that much in “anonymous” funds doesn’t make a lot of sense.

The media is right about this much: campaign finance is a big part of American politics. But the rules of the road, it seems, are as misunderstood as ever.