Democracy Decoded: Episode 3 Transcript

Dark Money Trickles Down

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Simone Leeper: 

Why does American democracy look the way it does today and how can we make it more responsive to the people it was formed to serve? I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. 

Campaign finance can sometimes seem like something far removed from our everyday lives, maybe something that only matters in Washington. But there's a lot going on at the state and local levels too, and there's a lot that everyday citizens can do to influence things and ensure their community's voices are heard. This week, we'll investigate two different campaign finance stories that played out in the Midwest that impacted everyday people. We'll talk to some folks who worked to bring about change in their own communities and help protect voters' right to know who is spending to influence their votes. 

The first story takes place in North Dakota and features a group affectionately known as the BadAss Grandmas, who banded together to change some of the laws where they live, which were giving wealthy special interests an outsized voice in their communities. The second takes place in Wisconsin and delves into the web of secret spending, also known as dark money, that enabled a large corporation to avoid being held responsible for the lead poisoning of 173 children. 

Our guide for the first part of this episode is Erin Chlopak, Senior Director of Campaign Finance at Campaign Legal Center. She was involved in working with the BadAss Grandmas to help them pass a ballot initiative that would change some of the laws in their state. 

 

Erin Chlopak: 

Campaign Legal Center, along with partner organizations — including RepresentUs and Voters' Right to Know —  had already been working with the grandmas, whose official name is North Dakotans for Public Integrity, when I joined CLC in the summer of 2018. And it was really exciting to get to come to CLC and work directly with a group of citizens who had organized themselves to bring about real change in their own state. They are a group of mostly retired North Dakotans, Republicans and Democrats, who were united in their frustration over corruption and lack of transparency and accountability in North Dakota politics, especially related to the influence of the oil and gas industry. And they came together because they'd had enough and decided that they wanted to do something about it. 

 

Ellen Chaffee: 

My name is Ellen Chaffee. I live in Bismarck, North Dakota. And I am a political independent. 

 

Dina Butcher: 

My name is Dina Butcher. I live in Bismarck, North Dakota. I have been a lifelong Republican since the first campaign I ever participated in was 1963. We are the BadAss Grandmas because all of us are grandmothers. We're not doing this out of self-aggrandizement or intention of ever running for office. It's for our grandchildren. And that seemed to catch on. We did take some pushback because some people feel that BadAss Grandmas is not a distinguished or prestigious enough title — a little racy maybe. I decided that there are two types of people in this world. There are the badass ones who go out and get things done and there are the tight ass ones who sort of hold things up. 

 

Simone Leeper: 

So let's back up a little bit. What was going on in North Dakota that made the grandmas feel like they needed to take action in the first place? What's the backstory? 

 

Dina Butcher: 

What we liked about North Dakota and the reason we chose to stay, we had young children in school and North Dakota is a good, safe environment for raising children. I think we liked the simplicity of it all and access to whatever you needed as far as having your local government officials to be of assistance. 

 

Ellen Chaffee: 

There's a saying in North Dakota —  be aware that whoever you're talking to is probably related to whoever you're talking about. Everybody knows everybody or their cousin or their sisters. That's very good in many ways, but it certainly has declined a lot. In the last 10 years, North Dakota has grown enormously. It's getting ever more urban. There's much less of a sense of community among us than there used to be. 

 

Dina Butcher: 

In 2011, the fracking boom began in Western North Dakota. It was like a huge landslide of money coming in, of people acting in ways that we weren't used to. The dynamics just shifted so tremendously in our legislature. 

 

Ellen Chaffee: 

The energy interests in North Dakota, they own North Dakota government. They absolutely own it, and how they bought it was with money and prestige and favors and gifts. I used to think that state government in North Dakota was as clean as it could get and really working for the citizens, but I completely disavow that opinion now. 

 

Erin Chlopak: 

So the grandmas, they saw particularly the influence of oil and gas where it seemed like they had control over government, and they were really frustrated and came together — sort of informally — and decided that they wanted to take matters into their own hands. 

 

Ellen Chaffee: 

We started having coffee with friends who had their own sad stories. And so we had many enjoyable grievance discussions wallowing in our misery. And finally, one day somebody said, "Have you seen what they're doing in South Dakota? They have a ballot initiative." We suddenly realized that we might have recourse. We might be able to design an initiative that the people could vote on to right some of the wrongs we were complaining about. Well, that galvanized us, and we met over the course of almost a year, every week, and talked about what we thought needed to happen. 

 

Simone Leeper: 

Ballot initiatives are one way that citizens can try to bring about change in their state. Not every state allows for them and the rules can vary, but it essentially works like this: a group of citizens can come together to put a question on the ballot that asks the citizens of that state to vote directly on whether to adopt a new law or procedure. Getting that question on the ballot can sometimes be quite challenging and often involves gathering a large number of signatures. 

 

Ellen Chaffee: 

We were very fortunate at that time, RepresentUs was looking around the country to see where there might be places they could support. So we formed an absolutely fantastic partnership with them and other organizations they introduced us to. And through that work, we brought to the people of North Dakota an initiated measure that has since become Article 14 of the state constitution. It has three major parts. The first part is campaign finance transparency, the second part deals with a variety of conflict of interest issues, and the third part created the ethics commission. 

 

Dina Butcher: 

When I was asked to participate in having an ethics commission in North Dakota, I didn't even realize that we didn't have that. People weren't being tutored in what they could and could not accept from outside influencers. Although, as a public official, I don't think any of the good people who run for office, run for office so that they can have free meals. But once they get here, that became the standard. And it got so blatant that I would see, when we were out to dinner, legislators would come in and they'd see a lobbyist and they would just pass their tab to that lobbyist. They wouldn't even ask. 

 

Erin Chlopak: 

The ballot measure that the grandmas worked on in 2018, it was generally speaking, designed to increase transparency and reduce opportunities for corruption in North Dakota elections and government action. And what it did was establish a constitutional right to know the ultimate and true source of spending in North Dakota elections. It set limits on lobbying and also established rules about conflicts of interest. And it created a new state ethics commission. CLC lent our legal expertise to the initiative effort. And after it passed, we worked with the BadAss Grandmas on efforts to ensure effective legislative implementation. One of the most glaring issues we flagged was the narrow scope of disclosure required under North Dakota law. The legislature created a massive loophole by requiring disclosure only for funds that are contributed solely to influence state elections. For example, someone could donate millions of dollars to a group spending money to influence North Dakota elections and shield the donation from disclosure by earmarking a tiny fraction of the donation for non-election expenses. 

 

Simone Leeper: 

Transparency in our elections is an issue that's being talked about a lot these days. So I asked Erin to explain a little bit more about why transparency is so crucial to our democratic institutions. 

 

Erin Chlopak: 

So knowing the true sources of money spent to influence elections is crucially important. The idea of participating in the democratic process through representatives who we elect necessarily depends on access to information about the interests supporting those people seeking office. How much is being spent and who is spending it? And without access to that information, our entire democratic process falls apart. In addition, as a result of the Citizens United case about 11 years ago, the opportunities for wealthy special interests and corporations to spend vast sums of money to influence our election is increasing exponentially. And the result of that is that it's all the more important to have access to information about who is behind that spending. 

 

Simone Leeper: 

Okay. That all makes sense. But one thing I'm wondering is if this is really a nonpartisan issue, the BadAss Grandmas were able to form a nonpartisan group of citizens around their concerns. But I've seen instances of transparency being discussed as a partisan topic. Some people say increasing transparency could favor one party over the other. 

 

Ellen Chaffee: 

Increased transparency benefits voters and it benefits our country. It does not benefit one party or the other. The right to vote, the right to have redress of ethics concerns, the right to know who's trying to influence your vote, those are all neutral party-wise. And in fact, we did some very sophisticated polling early on of several policies that we were considering for the amendment, for the measure. And there wasn't a single policy that polled below 80% favor and most of them were in the nineties. And to me, that's one of the big lessons of this whole activity is if we focus on the good things we all want, we can get something done. 

 

Simone Leeper: 

I found this whole story about the grandmas really inspiring and it left me wondering, what could I or anyone who cares about these issues do to bring about change in our own communities? 

 

Ellen Chaffee: 

One of the very hopeful developments in recent years, and it seems to be growing, is citizen activism at the municipal and county levels, where there are avenues to just even have conversations, have a town hall meeting or whatever with the policy makers and express yourself, ask for changes. And we see this happening all over the country. So I'm really hopeful that the move to restore democracy will get a strong, solid push at the local and municipal level, and transparency is a great place to start. 

 

Simone Leeper: 

That's it for part one of this episode. In the second half, we'll travel to Wisconsin to uncover the web of secret spending, or dark money, in campaign contributions, which enabled a large corporation to avoid being held responsible for the lead poisoning of 173 children. 

It's sometimes easy to forget, but the effectiveness of our campaign finance laws can have real consequences in people's lives. The laws can help make sure people know which wealthy special interests are spending money to try to influence their votes, or sometimes they can obscure the truth, making it more difficult for voters to be aware of campaign contributions and how those might be influencing politicians. This is exactly what happened in Wisconsin, where the laws enabled a large corporation to hide campaign contributions that effectively bought them immunity from lawsuits, which have been filed against them by lead poisoned children. Peter Earle is an attorney, now semi-retired, who worked on the issue of lead paint in Wisconsin for many years and knows this story intimately. I spoke with him to learn more about how he got involved and how secret spending, or dark money, came into play. 

 

Peter Earle: 

I got involved with lead paint issues back in the mid to late 1970s when I lived in Chicago. I was a community organizer and I learned about lead poisoning and how horrible and devastating it was for little children. I then went to law school in 1985, but I was very interested in lead poisoning — that concern really nagged me. So I started looking into lead poisoning as an area of litigation. 

 

Simone Leeper: 

I had heard about lead paint causing health problems for children before, but Peter was able to explain more specifically how that happens and why it's such a devastating issue. 

 

Peter Earle: 

Lead paint naturally deteriorates. It covers what we call impact surfaces, places where people open and shut windows and the abrading of the surfaces creates a fine dust, which settles often into the window wells or the floor immediately in front of the windows. And these little kids would just crawl around and do what little kids do all the time, the repetitive hand to mouth motion over and over and over again. And slowly but surely accumulate toxic levels of lead into their bloodstream. And the problem with lead poisoning is that once a child is poisoned, that poison is permanently in that child's body. It circulates in their blood and then settles out into the fat tissue, the bone tissue, into their hair, into their teeth, and the body accumulates a store of lead that just keeps percolating in that child's body, interrupting normal child neuropsychological development. 

And these are children who are born into some of the most hostile socioeconomic environments in our society. They are born into communities that are the victims of every form of racial injustice and discrimination, poor housing, poor schools, poor nutrition, brutal cops. The one thing that that child brought into this world that might allow that child to overcome those socioeconomic consequences is the brain power that God gave them. They're a capacity to function. That's what gets impaired. It becomes like a ball and chain on their ankle, and they become captured by that process. And oftentimes, are completely unable to become economically productive citizens of the country. 

 

Simone Leeper: 

I was horrified to hear just how devastating this problem can be, and even more horrified when Peter went on to explain the scope of the issue we're facing in the United States. 

 

Peter Earle: 

In the United States today, there are 3 million tons of lead on 57 million homes of which 3.8 million have both lead hazards and children under six in the home. 

 

Simone Leeper: 

So clearly this is a huge problem, and when Peter realized how widespread this was, he decided to take on the lead paint companies directly. 

 

Peter Earle: 

We went to the Wisconsin Supreme Court and we said, "Every single manufacturer that ever made lead pigment for paint knew that when they made that, that they were creating a product that would poison children and would cause harm. They were breaching a duty of care under the law. They all contributed to the creation of this gigantic risk throughout the United States and Milwaukee in particular." And the Wisconsin Supreme court in 2005 bought that argument and accepted it in a famous case called the Thomas v. Mallett decision. 

We began to sue these companies as a result of that. These companies went right to Scott Walker, right to the Wisconsin legislature and said, "We want you to pass a statute, a law that retroactively aggregates risk contribution and frees us from these lawsuits," as these children had filed. At that point in time, I had 170 cases pending in the courts of Wisconsin of lead poisoned children. These companies — Sherwin Williams, NL Industries, DuPont Company — they went to the legislature and they said, "Change the law." So Scott Walker and his buddies all got together, and they took a bill and they passed it in the middle of the night without any sponsors as a last-minute budget amendment. And it was basically four lines put in the legislation that took away these children's right to sue. 

 

Simone Leeper: 

All that sounded awful enough to me. But years later, Peter discovered that there was a whole nother layer to what had occurred. 

 

Peter Earle: 

One day, I was the sitting at my desk working on these cases and I got a phone call from a reporter from The Guardian saying, "Look what we found." And I was just... The words I used at the time — I was I was shaking with rage. I was completely astounded that unbeknownst to me, unbeknownst to my clients, unbeknownst to any of the citizens of the state of Wisconsin, the voters, the politicians, the Republican politicians at Wisconsin were in cahoots with these corporations,  for money, in order to change the law to their benefit. They paid $750,000 under the table to get precise language in a statute that freed them. And I said, "Wait a second. How can you change the rules of the game in the middle of the game in the United States of America?" That is something you would expect to happen in North Korea, not in the United States. Corporations should be on the same footing in court as normal citizens are. How many people do you know can go into court and say, "Judge, change the law because it's disadvantageous to me." This is what the lead paint companies did in Wisconsin. 

 

Simone Leeper: 

So a large corporation funnels a huge sum of money to the politicians in charge in Wisconsin in order to get them to change the laws and simply gets away with it? I thought our system had at least some safeguards in place to protect against these kinds of things. How was this whole thing even possible? To try to understand more about what was going on in Wisconsin at that time, I spoke with Brendan Fischer. Brendan was formerly Director of Federal Reform at Campaign Legal Center and is now Deputy Executive Director at Documented. 

 

Brendan Fischer: 

2010, Citizens United decision came down and the Supreme Court said that corporations can spend unlimited amounts of money in U.S. Elections. 2010 elections were the first with dark money groups and super PACs spending a lot of money. And in 2010, Scott Walker was elected governor of Wisconsin and Republicans took control of legislature. And Walker and legislative Republicans were swept into office with a significant amount of dark money spending. Wisconsin voters around 2011 began the process of trying to recall Walker and recall legislative Republicans, and it became a big fight. 

And it was through the course of those recall elections that Walker began to not only raise money for his own campaign, but what we learned later is that he was also raising money for a dark money group called Wisconsin Club for Growth, which was controlled by his campaign manager. So Walker, under Wisconsin law, could accept unlimited amounts of money for his own gubernatorial campaign, but all of those donations would have to be publicly disclosed. Wisconsin Club for Growth offered donors a way to not only write unlimited checks to support Walker, but to have their name remain secret. We later discovered a number of wealthy donors had given money to Walker's dark money group, including Donald Trump, and also including NL Industries, formally known as National Lead Industries, which was one of the companies facing liability in these lawsuits from Wisconsin children. 

 

Simone Leeper: 

I asked Brendan to explain a little further exactly what he meant when he was referring to dark money. 

 

Brendan Fischer: 

Dark money is political spending whose source is not publicly known. A contribution to a candidate or a PAC is going to be disclosed. You're going to know who provided that money, but a contribution to a dark money group is secret. So when you see millions of dollars in spending from a group like Wisconsin Club for Growth, you don't know where the money ultimately came from. But dark money is really only secret when it comes to the public's knowledge. Very often, the beneficiaries of dark money spending know where the money came from. So in Wisconsin, Scott Walker knew that NL Industries and its CEO had given $750,000 to his dark money group, but the public did not. 

 

Simone Leeper: 

This seems like a really huge problem. What's being done about all this dark money? 

 

Brendan Fischer: 

In 2019, congressional Democrats introduced H.R. 1, the For the People Act, which among other things had a number of provisions to end dark money, to strengthen federal law's transparency requirements. And Peter Earle testified in favor of those disclosure provisions. 

 

Peter Earle: 

I'm here to tell you the true story about how a Texas billionaire CEO secretly gave $750,000 to a dark money group in exchange for legislation that would retroactively block 173 severely lead poisoned children from holding the company accountable. It is a sad day for our democracy when a rich and powerful corporate CEO can deprive innocent victims of lead poisoning their day in court just because he could afford to secretly donate huge sums of money to greedy and ruthless politicians. 

 

Simone Leeper: 

Unsurprisingly, the American people support solutions that would ensure more transparency in our political system. 83% of voters support publicly disclosing political contributions, and 63% of all likely voters supported the recent Freedom to Vote John Lewis Act, which would've dramatically improved transparency. But so far, in both the current Congress and the previous one, politicians have not followed the express desires of the public and they've blocked these solutions, most recently in January 2022. If nothing is done about it, the failure of politicians in Congress to act on dark money will result in more corruption that impacts our everyday lives. 

 

Brendan Fischer: 

Dark money has an impact on real people. Campaign finance, and whether contributions are disclosed or not disclosed can sometimes seem technical, but dark money has an impact on all of our lives. In Wisconsin, dark money bought a powerful corporation and its CEO immunity from lawsuits filed by children that the company had poisoned. Wisconsin voters in 2011 and 2012 had no idea that Walker and legislative Republicans were being elected with six or seven figures in secret backing from lead paint companies and out-of-state mining companies. And they might have judged the messages coming from Wisconsin Club for Growth differently if they had known about the true sources of those contributions. 

 

Simone Leeper: 

Voters have a right to know. So what laws actually are in place to protect the interests of voters in such matters? On our next episode, we'll dig deeper into the regulation of our campaign finance system. Who's responsible for enforcing the laws we do have? And are they even doing their job? How up-to-date are the laws on the books? And what happens when bad actors are able to exploit the loopholes within them? We'll expose some of the cracks in the system and explore why they haven't yet been resolved. 

Special thanks to Erin Chlopak, Ellen Chaffee, Dina Butcher, Peter Earle and Brendan Fischer for appearing in this episode. You can find additional background information on the topics discussed in the show notes, along with a full transcript of the show. This podcast was produced and written by Casey Atkins and Brendan Quinn, with additional script writing by Bryan Dewan. It was edited by Parker Podcasting and narrated by me, Simone Leeper. 

Democracy Decoded is a production of Campaign Legal Center, a nonpartisan, nonprofit organization which advances democracy through law at the federal, state and local levels, fighting for every American's right to responsive government and a fair opportunity to participate in and affect the democratic process. You can visit us on the web at campaignlegalcenter.org.