Disclosure in the State Courts

Yesterday, for the second time in a week, the Committee on House Administration held a hearing on the DISCLOSE Act — DISCLOSE stands for “Democracy Is Strengthened by Casting Light On Spending in Elections.” The Act responds to the U.S. Supreme Court’s decision in Citizens United v. FEC, which struck down the longstanding ban on corporate expenditures in federal elections. According to President Obama, it would “establish the toughest ever disclosure requirements for election-related spending . . . so the American people can follow the money and see clearly which special interests are . . . trying to buy representation in our government." Obama argues that we need tough disclosure rules because we are “facing . . . no less than a potential corporate takeover of our elections.”

The DISCLOSE Act would bring much needed transparency to the financing of federal elections, and Congress should adopt it without delay. Increasing the information available to the public will help citizens make informed choices when they vote, and will ward off the potential for corruption that flows inexorably from hidden money.

But the DISCLOSE Act applies only to federal elections. Because undisclosed special interest spending poses the same threat to state and local races, state policy makers also need to act. One priority area should be state judicial elections, where the need for strict disclosure rules is particularly acute.

Why is disclosure in judicial elections so important? Because, as a 2004 cover story in Business Week put it, “special interests are increasingly turning to the courts to advance goals they can’t win legislatively. . . . Increasingly, they have come to view the judiciary as something to be gamed and captured — just like Congress or the State House.” An Ohio union official said it more succinctly: “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”

With special interests spending ever-increasing dollars to capture state judiciaries, robust disclosure rules are needed to protect fair and impartial courts. Legislators in the 39 states that elect judges should pass laws that require disclosure of who’s paying for judicial campaign ads.

It’s particularly important to prevent special interests from disguising their spending by funneling money through innocuous sounding groups like “Citizens for Better Courts.” That happens all too often. In a 2004 election for a seat on West Virginia’s high court, for example, the CEO of Massey Coal Co. — the company that operates the Upper Big Branch Mine where 29 miners were killed last month — spent $3 million to replace an incumbent judge with a more sympathetic one. The CEO channeled about $2.5 million through a group called “And for the Sake of the Kids.” Voters might well have thought a group with that name was primarily concerned with, say, fighting child abuse or education — not coal. Regardless, the spending worked: the CEO’s preferred judge won the race, and promptly cast the tie-breaking vote to throw out a $50 million damages award against Massey.

State legislators should adopt measures, like those in the DISCLOSE Act, that will help voters understand when a group like “For the Sake of the Kids” is really “For the Sake of the Coal Company.” That would shed welcome sunlight on the judicial campaign trail. But state courts need not — and should not — wait for the politicians in the legislature to act. Judges themselves can pass a number of rules — now — that would increase disclosure and promote fair courts after the campaigning is over, when the victorious candidates take their seats on the bench.

In particular, state supreme courts should adopt rules that require judges and litigants to disclose campaign spending, and that disqualify judges from hearing the cases of their biggest campaign supporters. The need for such rules was the ultimate lesson of the 2004 West Virginia race. In the Massey litigation, the U.S. Supreme Court ultimately ordered the judge who cast the decisive vote for Massey off the case because the CEO’s extraordinary campaign spending on his behalf created such a high probability of bias.

To ensure that every litigant appearing in court faces a level playing field — and no judge’s supporter has a “home court advantage” — state courts should pass three disclosure rules.

First, judges should be required to disclose, on the record or in writing, any facts that might affect whether they can be fully impartial. Even if a judge thinks he or she need not step aside in a given case, requiring the judge to list all relevant facts — particularly those about campaign conduct and fundraising — will ensure that litigants and the public are fully informed about potential influences on judicial decision making.

Second, at the outset of a proceeding, parties and their lawyers should be required to file an affidavit disclosing any contributions or independent expenditures they made in favor of or against the presiding judge. Such a rule would ensure that every relevant fact is on the record before disqualification decisions are made.

Finally, when judges are asked to recuse themselves because of campaign finance issues, they should provide written explanations of their decisions. Today, all too often, judges simply deny recusal requests without giving any reasons. Requiring judges to grapple with recusal requests in writing — as the Michigan Supreme Court recently did in adopting a new recusal procedure — guarantees that the public (and litigants) understand the relevant facts; ensures transparent and reasoned decision making; and makes meaningful review of recusal decisions possible.

State legislatures should adopt broad disclosure rules to ensure that all campaign spending — including in judicial contests — takes place in the light of day. But state courts should also act, by adopting narrower, more focused disclosure rules that come into play only when the same parties who bankroll judges’ campaigns appear in their courtrooms. The rules proposed above will protect every party’s due process right to a fair trial before a neutral, impartial decision maker. In today’s world of money-soaked judicial elections, that is a must.