Lawmakers file resolution bill that addresses 'dark money' in political campaigns

Feb. 7—CHEYENNE — Anonymous attack mailers have struck once again, this time targeting Wyoming Secretary of State Chuck Gray.

A few Cheyenne residents recently received anonymous attack mail that labeled Gray as a RINO, an acronym for "Republican In Name Only" that is used to accuse political leaders of spreading liberal ideology under a Republican facade.

They arrived just weeks after Gray held that two previous anonymous attack mailers that targeted Reps. Barry Crago, R-Buffalo, and Steve Harshman, R-Casper, were legal. Gray told the Wyoming Tribune Eagle via text message on Wednesday that he believes the attack was an attempt to intimidate him for upholding Wyoming law in the earlier complaints.

"But it won't work," Gray added.

In December, Gray said the anonymous person or people who sent the mailers were not required to disclose their identity under Wyoming's campaign finance laws.

"I do not believe the mailers constitute 'electioneering communications' or 'independent expenditures' under Wyoming law such that they are required to disclose who paid for them," Gray wrote in two letters on Dec. 22, first obtained by WyoFile.

Lawmakers are starting to speak out against the anonymous attacks, however. Senate President Ogden Driskill, R-Devils Tower, and House Speaker Rep. Albert Sommers, R-Pinedale, released an op-ed last week that condemned the anonymous mailers and encouraged Wyoming voters to exercise scrutiny in political messaging.

The ability to separate fact from fiction, the lawmakers wrote, "is the armor voters need to navigate this new political terrain."

"Understanding who is behind a particular message becomes paramount, because in this landscape, misinformation and disinformation spread like wildfire," Sommers and Driskill wrote in the guest column. "Unlike the familiar faces and local voices that traditionally shaped and reported Wyoming politics, these new 'messengers' often lack transparency about their authors, information sources and funding."

A House joint resolution filed by members of the Legislature's Joint Corporations, Elections and Political Subdivisions Committee asks for an amendment to the U.S. Constitution to identify the source of political contributions.

Critics speculate attack mailers are a source of "dark money," a term that refers to the contributions from anonymous political donors who hide their identity behind political action committees (PACs). A Supreme Court ruling in 2010, Citizens United v. FEC, decided that corporations were protected under the First Amendment and allowed to donate money to election campaigns as a form of free speech.

"The United States Supreme Court has ruled in a series of cases that corporations are people, and money is speech," Rep. Ken Chestek, D-Laramie, told the Wyoming Tribune Eagle.

The issue, Chestek said, is that donors hide their identity through independent expenditure corporations, or 501(c)(4) organizations. The IRS identifies these groups as social welfare, commonly known as nonprofit groups.

"(These) organizations don't disclose who their donors are," Chestek said. "They spend a lot of money attacking you, and you don't know who's attacking you."

Chestek led efforts by Wyoming Promise, an advocacy group formed in 2016, to call for a 28th amendment to the U.S. Constitution to identify political donors.

After failing to get enough signatures to put a resolution on the Wyoming ballot, Chestek approached members of the Corporations Committee in 2019, where it was adopted as a committee bill. The bill passed the House during the session, but failed in the Senate.

This year, the bill was filed again as House Joint Resolution 2, sponsored again by the Corporations Committee. If passed, Wyoming would join more than 20 other states in asking Congress to amend the Constitution.

'Dark money' in politics

John Rivera, a former Cheyenne attorney who used to work in the Wyoming Legislative Service Office, said he left LSO for many reasons — the influence of dark money in the Legislature is one of them.

Since the Supreme Court decided super PACs were exempted from identifying where their donor money came from, dark money has "flooded" states across the country, Rivera said, including Wyoming.

"Nobody knows who they are, and they're free to say whatever they want," Rivera said. "It's hard to respond when you don't know who it is you're responding to. But they've spent a tremendous amount of money, and, actually, that's one of the reasons that I left."

Many lawmakers benefited from dark money, he said, and were "beholden" to the super PACs that supported them. However, Rivera added that lawmakers are changing their stance on dark money after seeing the "insidious" ways it affects their ability to legislate.

"We've had some very good legislators who have been voted out of office simply because of dark money," Rivera said.

Sen. Cale Case, R-Lander, who was targeted by anonymous attack mailers last election cycle, said lawmakers are "angry" about becoming the targets of these mysterious donors.

"The committee maybe wouldn't have passed (HJ 2) a couple of years ago," Case said. "But after some of the things that happened in the last election, they're closer to doing so."

Dark money is a way for anonymous donors to attack people without consequence, Chestek said. Transparency is a necessary part of democracy because voters deserve to understand the truth behind the candidates they're voting for.

"(Anonymous donors) are empowered to say things that are over the top and more outrageous," Chestek said. "They can't be held accountable for lies if they commit libel."

Both Chestek and local League of Women Voters lobbyist Marguerite Herman said people should be responsible for the political messages they distribute. This form of transparency could soften extremist messaging that misleads susceptible voters.

"If you want to push a message to voters with the idea ... of influencing, you should put your name on it," Herman said.

One of the foundational tenets of the League of Women Voters, Herman said, is to promote fully informed voters and encourage full engagement with their government to promote transparency in democracy.

A long way to go

Should the Legislature pass HJ 2, Chestek said, Wyoming would become the 24th state to adopt a resolution asking Congress to amend the U.S. Constitution. The goal is to get 38 states to sign on before Wyoming Promise approaches Congress.

After passing the bill in the committee by a 9-5 to vote, Chestek said there is already strong support in the Legislature.

"It's a nonpartisan issue," he said. "It's really demeaning the level of political discourse in the state, and I think a lot of us want to change that."

The amendment to the U.S. Constitution "has a long ways to go," Case pointed out, even if Wyoming lawmakers passed the joint resolution. Any amendment to the U.S. Constitution must be ratified by three-fourths of state legislatures.

"It's an amazingly long process," Case said, "but this is the first step."

Hannah Shields is the Wyoming Tribune Eagle's state government reporter. She can be reached at 307-633-3167 or hshields@wyomingnews.com. You can follow her on X @happyfeet004.