Dark money group running attack ads in Ohio against Sherrod Brown with almost no public disclosures

About a week ago, an ad began airing that criticizes U.S. Sen. Sherrod Brown, D-OH, over U.S. immigration policy. The ad itself is about what you’d expect. The narrator crams as many policy failure claims as possible into 30 seconds over stock footage of tent cities and migrant caravans. Although the ad places blame on the senator, it’s careful not to say anything about how voters should cast their ballots.

What’s interesting is the group behind the ad. Citizens For Sanity has been around since last year, making a name for itself with provocative billboards during last year’s midterms. The messages are often sarcastic, sometimes “thanking” lawmakers for their stance on a culture war issue. One billboard that ran in Columbus read “no one is free until all pansexuals have free housing.”

But despite its track record, the organization’s paper trail is scant.

They’ve yet to file with the Federal Elections Commission which tracks things like campaign spending. The organization also hasn’t filed its annual tax forms which would offer a glimpse of group’s fundraising and spending, even if its donors remain hidden.

Can they do that?

Citizens For Sanity is able to skirt those disclosures because they’ve timed and calibrated their messages perfectly. Anna Massoglia, the editorial and investigations manager at the website OpenSecrets, explained.

“The main reason that Citizens For Sanity has not had to file anything with the Federal Election Commission has been because they’ve avoided those ads with what are called the ‘magic words,’” she said.

The U.S. Supreme Court case Buckley v. Valeo, drew a distinction between advocating for a candidate and an issue. So long as the ad avoids telling a viewer how to vote, the organization has a lot of leeway, including praising or disparaging a candidate.

Massoglia added that communications only trigger an FEC report if they show up in the right medium and timeframe. The FEC considers TV and radio ads electioneering communications if they run in the 30 days before a primary or 60 days before a general election. Other media — like online ads or billboards aren’t covered.

“As long as they avoid those windows and those specific types of communications that are governed by the Federal Election Commission rules,” Massoglia said, “they can run these ads whenever they want.”

Death and taxes

The group is organized as a 501(c)(4), which means it doesn’t need to disclose its donors, and political advocacy can’t be its ‘primary’ purpose. Although the IRS hasn’t explicitly defined ‘primary,’ in practice, 501(c)(4)s need to keep their political spending to less than half the total. The organization’s annual tax forms, known as a 990, would shed light on the money coming in and going out. But Citizens For Sanity, which formed in June of 2022, hasn’t filed one yet.

Massoglia explained that organizations don’t have to file until their fiscal year ends. That means groups can game out the calendar to delay their filing requirements.

“It’s not necessarily that they’ve failed to file Form 990,” Massoglia said, “as much as they just had not been required to just to file one yet.”

That long lag time opens up opportunities for shady campaigning. Dark money groups can ‘pop up’ and go through their entire life cycle before having to file a single 990.

“It is very common for groups to form shortly before an election,” Massoglia explained, “to spend substantial sums of money, and to not have to disclose much information until long after the election is over.”

What do we know?

Although Citizens For Sanity hasn’t had to file with the FEC or submit its 990 yet, the group does have to file paperwork for its ads. Last September, Massoglia was able to show Citizens For Sanity’s board members are Trump administration alums tied to the America First Legal Foundation.

Those reports, to the Federal Communication Commission, show the organization contracted with Dayton’s WHIO for about $250,000 in ads. According to those filings, the ads reference Sen. Brown, but “illegal immigration” is their topic. The group signed a contract for more than $200,000 in ads with Dayton’s WDTN as well.

Massoglia added that nonprofit organizations have to make documents related to their tax-exempt status available for public inspection. Ohio Capital Journal has requested those documents, but Citizens For Sanity has yet to respond.

Follow OCJ Reporter Nick Evans on Twitter.