More than $100 million is expected to be spent on this year’s gubernatorial primary elections in New Jersey. That would reflect the first large-scale spending by independent committees, groups that legally aren’t allowed to coordinate with the candidates.
According to Saurav Ghosh, director of federal campaign finance reform with the Campaign Legal Center, there has been only one case of collusion prosecuted in the history of independent spending and that, he said, was an outlier.
NJ Spotlight News spoke with Ghosh about the explosion of outside spending in elections that began with the 2010 U.S. Supreme Court ruling Citizens United v. Federal Election Commission. In its 5-4 decision, the court struck down prohibitions on contributions by corporations and unions to committees not run by candidates, saying that limiting this kind of spending would be akin to limiting speech. Independent committees include federal superPACs, state-level committees and nonprofits organized under the 527 and 501(c) sections of the federal tax code. More than half the $3.6 billion spent on last year’s presidential election came from outside groups, data from the campaign money website OpenSecrets shows.
The following interview was edited.
NJ Spotlight News: Was Citizens United the first thing to significantly change this landscape?
Saurav Ghosh: Well, I think Citizens United is often a pretty seminal moment in this conversation. It really depends how broad a look you’re taking. But yeah, I think that’s a good starting point for when money in the campaign finance system really blew up, and we at the Campaign Legal Center talk about how every election since then has reflected more spending and, in particular, more spending by these so-called outside groups, the groups that are financed by corporations and individuals giving unlimited amounts of money, which set them apart from candidates, campaigns and political party committees, at least in the federal system.
What we’re seeing with groups like these, state-focused independent expenditure groups, is sort of a mimicry of what’s happened at the federal level. These are groups that, following the same guidelines in state law, are also financed by these corporations and individuals giving unlimited amounts.
The challenge that they have presented, all of these outside groups, is this problem of being able to follow the money. Folks who want to know who’s actually spending on behalf of a candidate that I’m considering voting for, they want to know where’s the money coming from. I think that is a vital piece of casting an informed ballot, being an informed voter. And it has just gotten so much more difficult, because oftentimes these outside groups, even if they disclose their sources of funding, what they might be disclosing is simply the name of a nonprofit that doesn’t disclose its funding sources. You end up chasing the source of the money, and you end up with a fairly meaningless name of some nonprofit. You don’t actually get an answer to the question [of] who’s spending the money, who’s providing the money, and what are their motivations.
NJSN: One of the issues when it’s nonprofits is that you’ve got to wait for them to file a 990 federal tax return and that’s at least a year behind, if not two.
SG: It’s a common problem. The 990s disclose their financial activity based on a fiscal year that may not track at all with the kind of election timing that would be needed for people to have info about the group spending before the election is held. But I think the real rub is that even the 990 doesn’t have to disclose the donors, the information about who’s providing the money. So even if you get a 990, you don’t get an answer to that most crucial question of who’s providing the money and what are their goals.
NJSN: It’s also hard to find these independent groups: There’s no one place to find information on all of them.
SG: This is another problem. The outside groups at the federal level [are] required to register and report with the FEC, so their data is going to be listed on the same website as any federal candidates. But at the state level, that’s going to vary state to state. Even if the data is there, is it really accessible? Is it in a format where you can just go in and find out? I think the answer in a lot of states is no, and that makes this all that more potent as a weapon for special interests who want to spend money secretly, or at least in a way that no one can actually parse it out.
NJSN: What about the requirement that there be no coordination between candidates and independent groups?
SG: I think coordination can take a lot of different forms, and I think the part that is most concerning is when a candidate’s campaign is coordinating in terms of their actual messaging or targeting, because what that does is it essentially makes these outside groups part of the campaign. And the problem is that by working together, by coordinating, they are converting what are supposed to be outside dollars and they’re making them effectively the same as the candidate’s own money. So at that point, there’s no meaningful distinction between somebody giving money directly to a candidate and somebody giving a much bigger check to a supposedly outside group. If that person giving the much bigger check is tantamount to a campaign donor, then they get the same result, which is this sort of special treatment afforded to somebody who obviously gave a lot of money to help elect somebody into a powerful position.
We see this happening at the federal level. Examples from the 2024 election are all over the front page of the newspaper. So unfortunately, the bad stuff we see happening at the federal level has clearly trickled to the states as well and that’s why preventing coordination is such an important pillar of this [federal campaign financing] reform, because this concept that billionaires and corporations spending money on elections won’t be corruptive because it’s independent — that’s something the Supreme Court said — sounds kind of comical now, 15 years later.
NJSN: Do you know how many times corrupt coordination was proven?
SG: At the FEC, we were looking since Citizens United, and we really found only one, and that was sort of a super outlier case where the (U.S. Department of Justice) had done most of the investigating already. I’d like to say that, as a practical matter, the coordination laws have really never been enforced. And I think over time, that has consistently sent the message that, again, this is kind of a joke. (Ghosh worked for almost seven years in the FEC’s Office of General Counsel, investigating alleged campaign finance violations.)
NJSN: New Jersey’s public financing law was passed in 1981 to limit the influence of money in elections when the financing landscape was very different. We didn’t have all these independent groups, and everybody was pretty much reporting. If a candidate takes public matching funds, they must agree to spend no more than $8.7 million and the campaigns want to spend more than that and they have looked for ways to do that with these different groups. It seems like maybe our laws are encouraging this or certainly are not accounting for it.
SG: I think the laws and the ways the laws have been interpreted are encouraging this spending, and you see that there are actually cheerleaders on the ideological side that favor more money and sort of more permissive spending, regardless of who’s doing it or what their goals are. That side of the debate over campaign finance laws and spending in elections, they’re really having their heyday. And I think the consequences of that are really quite visible. You can see in our political system who’s winning, whose interests are being served. I like to think that there’s some point at which it has to stop, but we haven’t even approached that point yet.
NJSN: How do we bring it under control?
SG: That’s certainly a big part of what we do at the Campaign Legal Center — we try to advocate for solutions that would dramatically improve transparency, would curb coordination between outside spending groups and candidates, and all of that actually is still within the parameters of Citizens United.
Sometimes folks ask is it possible to have any kind of reform without just overturning that decision, and the answer to that is absolutely, because the conditions that the Supreme Court set forth in that decision are simply not being met. They presumed that the spending would be independent and that it will be openly disclosed, and it is neither of those things. The reform that’s possible at the federal level and the state level are laws that actually combat coordination, laws that are more robust about tracing back the sources of spending in elections. That can make a huge difference. And in some places, we’re seeing some of that progress happening. I don’t know if measures like that are happening in New Jersey, but there’s certainly a lot of spending going on in this this gubernatorial election. Maybe this will spur a conversation.
This report is made possible in part by the Corporation for Public Broadcasting, a private corporation funded by the American people.
