Who chooses our next member of Congress, you or the billionaires?
By ANDRU VOLINSKY
Outside Super PACs have spent more than $1 million in dark money on the Democratic Primary for Congress in NH’s CD-1 (Manchester, Laconia and the Seacoast) and we still have more than five weeks to go. The spending has been in support of candidates Maura Sullivan and Stefany Shaheen.
Who will decide this race, the Super PACs supported by billionaires or you?
Last week, I wrote about Trump coming for our elections. NH Governor Kelly Ayotte’s response was “no big deal,” another example of the normalizing of Trump’s extreme and erratic behavior that challenges legal, ethical and moral norms.
This week, I am writing about another threat to fair elections, one that is on both the Republican and Democratic sides of the aisle. The second threat is the pernicious impact of money in politics, particularly when the money is “dark.” Shady non-profits and LLCs often funded by a very few, very wealthy individuals spend money to influence elections through Super PACs. The money is considered “dark” because there is no public record of who funds the Super PACs. You can be sure the candidates understand who put up the money, but the public doesn’t really know.
This Super PAC spending should be distinguished from campaign spending where the candidates do the work, with help from friends and family. Candidates who don’t do the hard work to raise money can’t compete because they can’t communicate their message and teach voters who they are.
PAC v. Super PAC
A PAC is a political action committee. PACs are limited in how much they may contribute directly to a candidate. The limit is really on what a candidate may accept from a PAC. It’s $5000 per federal election. The maximum a candidate may receive from an individual is $3500 per federal election.
Super PACs don’t have any limits, in theory, because they don’t contribute directly to the candidates they support. They act “independently” to avoid disclosing who funds them. Super PACs aren’t required to publish where their money comes from, although nothing prevents them from doing so.
The infamous Citizens United Supreme Court case decided in 2010 led to the creation of Super PACs. The case resulted from a conservative group’s effort to air an anti-Hillary film in 2007. The film was considered an “electioneering communication” that was prohibited by the Bipartisan Election Reform Act of 2002. The conservative group was called “Citizens United.”
According to the Brennan Center,
The Supreme Court eventually decided 5–4 that Citizens United was within its First Amendment rights to spend its money disseminating the film. But rather than opining solely on the case before it as it had been asked to do, the Court took the opportunity to entirely strike down century-old prohibitions on corporate “independent” spending — money that doesn’t go directly to a candidate or party. This applied to labor unions as well. Lower courts applying the ruling extended it to invalidate almost all fundraising and spending restrictions for groups that purport to be separate from candidates, many of which are today known as “super PACs.”
How big is the problem?
Again, from the Brennan Center,
From 2010 to 2022, super PACs spent approximately $6.4 billion on federal elections. In the 2024 election, they set a record of at least $2.7 billion. Super PAC money has largely eclipsed donations by small donors (people giving $200 or less), despite funds from small donors growing. For example, in the 2022 midterms, just 21 of the biggest donor families contributed $783 million and billionaires provided 15 percent of all federal election financing — most of which went to super PACs supporting congressional campaigns. These donors easily outspent the total given by the millions of small donors giving to House and Senate candidates that cycle.
Elon Musk was the biggest donor/spender/manipulator of the 2024 cycle. Musk just announced he’ll spend between $100 million and $120 million across eight states in 2026 through his Super PAC, America PAC. Maine, where Susan Collins is facing off against Troy Jackson for US Senate, is one of Musk’s chosen battleground states.
Can dark money be regulated by states in the absence of federal regulations?
A case argued before the US Court of Appeal for the First Circuit in Boston last week will provide the next step in answering this question. Ultimately, the US Supreme Court will weigh in and I can’t imagine that we’ll like their answer.
Maine voters adopted a citizen’s initiative in 2024 to require action by the Maine state legislature on Super PACs. Three fourths of Maine voters supported the measure and Maine adopted a spending cap of $5000 per election on Super PACS operating in Maine. A group called Dinner Table Action represented by the law firm of Pierce Atwood immediately challenged the law and a federal judge enjoined its operation following the Citizens United precedent. A coalition of groups, including the Maine Attorney General, appealed the injunction to the US Court of Appeals for the First Circuit in Boston. A coterie of well-known and experienced lawyers argued last week for the Court of Appeals to allow the law to operate. Among them were Lawrence Lessig of Harvard and a non-profit called, “Equal Citizens” and Neal Katyal, a partner at Milbank LLP and professor at Georgetown. Katyal was acting solicitor general under Obama. The solicitor general ordinarily represents the United States before the US Supreme Court.
The argument in Boston centered on who funds Super PACs and whether they are independent. NH’s own Judge Seth Aframe was interested in the question of whether a Super PAC relying on a single funder, like Elon Musk or another billionaire, distorted the intent of Citizens United. Other judges asked about whether Super PAC expenditures are actually independent of the candidate that is being supported.
“Red Boxing”
There are tons of ways that campaigns and Super PACs coordinate. Perhaps the most egregious is “red boxing.” In red boxing, the federal candidate actually posts the messaging and photos or videos that the candidate would like the Super PAC to use in its “independent expenditures.” By using the preferred materials, the Super PAC’s ads, flyers, and digital copy perfectly align with the candidate’s strategy.
The practice is both brazen and breathtakingly simple. To work around the prohibition on directly coordinating with super PACs, candidates are posting their instructions to them inside the red boxes on public pages that super PACs continuously monitor.
The boxes highlight the aspects of candidates’ biographies that they want amplified and the skeletons in their opponents’ closets that they want exposed. Then, they add instructions that can be extremely detailed: Steering advertising spending to particular cities or counties, asking for different types of advertising and even slicing who should be targeted by age, gender and ethnicity.
Maura Sullivan’s “red box” is here.
It literally tells her “Independent” Super PACS what she wants.
Voters need to see cable TV ads and continue to see digital ads on programmatic, streaming and YouTube that Marine Corps Veteran Maura Sullivan will bring a new generation of leadership that stands up to Trump’s dangerous agenda.
A Super PAC called Vote Vets has sent multiple mailers into the Congressional District on behalf of Maura Sullivan and spent $400,000 on television and digital adds. The total reported spend by Vote Vets to support Sullivan’s campaign exceeds $600,000.
A second Super PAC called the Servant Leaders Fund, LLC spent almost $185,000 in support of Ms. Sullivan. In the 2022 cycle, this fund contributed a quarter of a million dollars to the Republican Congressional Committee and $38,000 to Mar-a-lago Club, LLC. Why on earth is this Republican oriented Super PAC spending money to help a Democratic candidate in the 2026 Democratic Primary?
Stefany Shaheen has engaged in some of the same conduct. Tim Smith of Manchester reports on Facebook that he received a mailer touting Stefany Shaheen from Article One PAC, which abbreviated is A1PAC. A1PAC, he notes, kind of looks like AIPAC, the American Israel Public Affairs Committee.
A1PAC has shown up in a number of races across the country. Robert Granieri, the billionaire founder of Jane Street Capital, is one of the few identified funders of A1PAC.
Since 2023, Wikipedia reports, Granieri has donated $5 million to Super PACs in US elections, most pro-Israel. Open Secrets reports the details of his contributions which are to both liberal and conservative Super PACs.
Christian Urrutia opposes Dark Money.
I am pessimistic about the chances of the new Maine law, and similar laws in Hawaii and Montana. I wish it were otherwise. Ultimately, the US Supreme Court will rule on these laws and the current Supreme Court is not open to campaign finance reform. The answer, at least for the rest of my lifetime, must be political. Voters must take into account which candidates play in the system of dark money. They must ask, can these folks beholden as they are to the billionaires and special interests, really be expected to change anything?
Understanding the corrupting influence of dark money, candidate Christian Urrutia called for all the candidates for Congress in NH’s CD-1 to refrain from inviting dark money into the race. That was weeks ago. Now we know why candidates Shaheen and Sullivan declined to do so.