“This isn’t something that just happened. It was a carefully executed caper pulled off by an unholy alliance of wealthy businessmen and religious extremists who decided that the word of God was the sound of money.”

HBO’s “The Dark Money Game” is many things, but it is not subtle. The 2-part, 4-hour production from documentary filmmaker Alex Gibney hammers a simple message: American politics has been corrupted by big business conservatives and anti-abortion activists who teamed up to tear down the limits on money in politics in order to buy their way into power.

The problem? It’s just not true. In order to protect its narrative, the series jettisons any and all facts that might get in its way. The result may be entertaining as a true-crime spectacle, but it is essentially worthless as a commentary on politics, law, and history. 

Among the documentary’s biggest flaws, “The Dark Money Game” completely distorts the history of campaign finance law in order to present deregulation as a partisan project intended to secure Republican victories in elections. For instance, viewers are introduced to the seminal 1976 Supreme Court decision Buckley v. Valeo, which struck down portions of the Federal Election Campaign Act, as a case that the “tremendously right-wing” Koch brothers “get involved with.” The series never mentions the leading role liberals played in that case, the plaintiffs of which included the New York Civil Liberties Union and former Democratic U.S. Senator and liberal stalwart Eugene McCarthy. Nor does it mention that they were represented before the Court by the ACLU.

Then, turning to the Court’s ruling, the series focuses on conservative Justice Lewis Powell and ignores that Buckley was a per curium decision, meaning it was decided by the Court as a whole. Perhaps this is unsurprising: in a series that argues the deregulation of campaign finance and the rise of anti-abortion politics are two sides of the same right-wing coin, it could be devastating to reveal that liberal Justice Harry Blackmun, the author of Roe v. Wade, joined the Court’s decision in Buckley. In fact, it was Blackmun who gave an early nod to super PACs in the 1981 case California Med. Assn. v. FEC (writing that “contributions to a committee that makes only independent expenditures pose no such threat” of “actual or potential corruption.”) The Supreme Court finally embraced Justice Blackmun’s logic in Citizens United, yet the “Dark Money Game” makes it appear as a victory for Justice Powell and the political right alone. 

Also left out is the entire history of corporate personhood and First Amendment rights outside of campaign finance. Journalist Jane Mayer claims in the series that First National Bank of Boston v. Bellotti, a 1978 case that struck down a ban on corporate expenditures in ballot measure campaigns, “establishes the idea that corporations have First Amendment rights.” What about The New York Times, a corporation that had already won multiple landmark Supreme Court cases on First Amendment grounds by that point, namely NYT v. Sullivan (1964) and NYT v. US (1971)? What about the NAACP, a nonprofit corporation that won historic First Amendment rulings in the 1950s and 1960s to ensure its ability to operate in Jim Crow states and to protect the privacy of its members and donors? What about Bigelow v. Virginia (1975), which established First Amendment protections for commercial advertising by striking down a fine issued to a newspaper editor who ran an advertisement for an abortion service provider? These cases, which show another side to restrictions on advertising and political speech by corporate entities, receive no mention in “The Dark Money Game.” 

The series’ treatment of 2010’s Citizens United is similarly rife with omission. The film suggests that the Court’s conservative majority exploited the case to legalize corporate campaign expenditures when they could have simply ruled that documentaries like “Hillary: The Movie” are not campaign ads. Yet it was the government’s attorneys, not the Justices, who forced the issue by arguing that the law in question empowered them to prohibit any form of corporate expenditure, including potentially books that contained a single line of political advocacy. Gibney may have wanted the Court to rule that the law restricted television advertising only, as he suggests, but the government did not take that position and only began walking back its book-banning claim when it was clear they were going to lose. The documentary never mentions this, leaving viewers to assume that the Roberts Court went rogue by ruling as they did. Lastly, (stop me if you’ve heard this before), the doc fails to mention that some liberal groups like the ACLU supported the Citizens United decision.

“The Dark Money Game”’s cherry-picking extends to its treatment of abortion politics. Highlighting an Ohio anti-abortion law passed in 2019, the series implies that loosening campaign finance laws produced big wins for anti-abortion groups. (“Flush with campaign cash from ‘dark money’ donors, the anti-abortion side was all smiles, like a team that plays the game knowing the fix is in,” Gibney says in voiceover as footage shows Republicans celebrating the bill’s passage.) Yet the pro-abortion rights side has actually been just as, if not more, prolific in using the freedoms secured in First Amendment rulings to advance their cause. Last fall, the Associated Press reported that pro-abortion rights groups were outspending their opponents more than 6:1 in state ballot measure races. In response, Republican state lawmakers are increasingly flirting with new restrictions on campaign finance – including in Ohio. These recent trends, which seem to directly contradict the “Dark Money Game”’s core message, are not addressed in the series. 

Many other important issues around so-called “dark money” are left completely unexamined. For example, one thing the series demonstrates quite effectively, at least in its first episode focused on Ohio’s FirstEnergy scandal, is that some powerful politicians are more than willing to bend or break the law to silence their opponents. Yet the series never reckons with the potential for campaign finance laws to be used as weapons in this retaliation. Throughout American history, however, that has happened numerous times.

Consider one of the earliest prosecutions brought under the Federal Election Campaign Act: the Nixon administration went after the ACLU for an ad in The New York Times calling for Nixon’s impeachment over the bombing of Cambodia. Or consider when Jim Crow leaders used demands for donor information to try to shut down civil rights organizations in their states. Those battles culminated in the Supreme Court decisions that today undergird the right to donor privacy – the idea that your name, address, and employer should stay private when you donate to advocacy groups like the NAACP. 

Gibney calls it “dark money” when conservatives exercise these rights, but what would he call the NAACP, ACLU, and Planned Parenthood? These groups also protect the privacy of their contributors while working to influence government and public opinion. That’s why they often join with conservative and pro-life organizations in fighting against donor disclosure laws and supporting donor privacy protections. 

“The Dark Money Game” wants viewers to think every 501(c)(4) organization is like their portrayal of Ohio’s Generation Now — a conduit for wealthy interests to bribe political leaders. But in fact, 501(c)(4) is just the designation in the tax code for any group of citizens that wants to engage in policy advocacy with access to a toolbox that includes unlimited lobbying and limited campaign speech. Countless grassroots groups who have no big donors and no ties to political leaders rely on these entities to exercise their First Amendment rights to speak, publish, assemble, and petition the government without landing in hot water with the IRS and other regulators. The fact that some people abused these freedoms, broke the law, got caught, and went to prison for it does not mean that innocent Americans should also lose their rights to privately support causes they believe in.

Gibney leaves viewers to assume only bad actors – or at least, only conservative ones – care about their privacy. That is plainly false. Americans who fund organizations that challenge the actions of powerful (and sometimes corrupt) government officials have every reason to want to maintain their anonymity, regardless of their beliefs. Sacrificing that privacy in hopes of exposing one side’s donors would only add another weapon to the arsenal of corrupt officials who seek to stamp out their opposition and achieve total control over the government.