DC court paves the way for political dark money to get even darker

A new ruling on the Federal Election Commission (FEC) could pave the way for more untraceable donations in politics this week, closing off a key avenue for watchdogs to peer into FEC rulings.

The D.C. Circuit Court of Appeals on Monday refused to reconsider its 2021 decision to block courts from reviewing FEC rulings and prevent private watchdog groups from issuing challenges to certain decisions, the Washington Post reported Thursday. The court’s opinion argues that judges have no authority to challenge the FEC’s invocation of ‘prosecutorial discretion’ when defending its decisions not to pursue a given case.

Prosecutorial discretion refers to the authority of prosecutors to determine the extent of enforcement of a given law.

Since the courts cannot rule on such decisions, private groups seeking to scrutinize spending cases have no avenue to bring challenges against decisions the FEC defends under prosecutorial discretion. Activists argue this opens a clear road for defending all sorts of dark money donations, according to WaPo.

This is due in part to the makeup of the FEC, which, like many other federal organizations, is led by a bipartisan commission. But while organizations like the FCC are led by a five-person commission with a maximum of three commissioners per party, the FEC is led by six commissioners with a maximum of three per party. The organization also requires at least four votes to move forward with prosecuting a case, leading to frequent deadlocks.

Prior to 2021, private organizations could challenge cases that they argued the FEC wrongfully dismissed. Now, however, those challenges would fail so long as the commissioners who rejected the case defended their decision under prosecutorial discretion, FEC Commissioner Ellen Weintraub, a Democrat, told WaPo.

Dark money spending accounts for tens of millions in political donations for both Republicans and Democrats every election cycle, allowing groups to pour funds toward certain candidates with little-to-no public scrutiny.

The nation’s largest left-wing dark money network raised more than $1.5 billion in anonymous donations to bankroll liberal priorities in 2021 alone.

The secret money network, which consists of five nonprofits managed by Washington, D.C.-based consulting firm Arabella Advisors, also combined for nearly $1 billion in total spending last year.

Fox News’ Joe Schoffstall contributed to this report.

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