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The Rise of Dark Money Is a Threat to Judicial Independence

Since the Supreme Court’s 2010 Citizens United decision, wealthy interests seeking to influence supreme court elections are increasingly turning to outside spending by groups, rather than contributing to candidates or political parties.

July 6, 2018

Cross-posted from ABA Journal

Elec­ted judges and judi­cial inde­pend­ence have always been an awkward fit. “Politi­cians are expec­ted to be appro­pri­ately respons­ive to the pref­er­ences of their support­ers,” as U.S. Supreme Court Chief Justice John Roberts has observed. By contrast, judges “must ‘observe the utmost fair­ness,’ striv­ing to be ‘per­fectly and completely inde­pend­ent.’” 

Put simply, judges are supposed to put aside their polit­ical or partisan pref­er­ences and decide cases based on their under­stand­ing of what the law requires—even if it’s unpop­u­lar. That is a lot to ask of anyone—but elec­tion pres­sures can make that job even harder.

Thirty-eight states use elec­tions for their state high courts. Across the coun­try, these elec­tions have become increas­ingly expens­ive and politi­cized. Today, one-third of all sitting justices on elec­ted courts have run in a million-dollar elec­tion, as docu­mented in a recent report by the Bren­nan Center for Justice and National Insti­tute on Money in State Polit­ics. The 2015–16 elec­tion cycle had a record number of big-money supreme court races.

But while high-cost elec­tions are now the norm in many states, new devel­op­ments sharpen concerns that partisan and special-interest pres­sures threaten the prom­ise of even­han­ded justice in state court.

Since the Supreme Court’s 2010 Citizens United decision, wealthy interests seek­ing to influ­ence supreme court elec­tions are increas­ingly turn­ing to outside spend­ing by groups, rather than contrib­ut­ing to candid­ates or polit­ical parties. Accord­ing to the afore­men­tioned Bren­nan Center report, during the 2015–16 cycle, super PACs, social welfare organ­iz­a­tions, and other groups funneled a record $27.8 million in outside spend­ing on supreme court elec­tions, which accoun­ted for 40 percent of all supreme court elec­tion spend­ing.

This rise in outside spend­ing has brought with it a stun­ning lack of trans­par­ency. In 2015–16, only 18 percent of groups’ spend­ing in supreme court elec­tions could be easily traced to trans­par­ent donors. More than half of all outside spend­ing was completely “dark,” mean­ing that the under­ly­ing donors were undis­closed.

This flood of secret money leaves voters without import­ant inform­a­tion about the interests trying to shape state courts, and it can obscure poten­tial conflicts of interest for judges and litig­ants alike. By defin­i­tion, dark money is hard to trace. But when we’ve been able to follow the money, it turns out undis­closed money often comes from donors with strong economic interests in issues coming up in state court—­some of whom have cases pending at the time of an elec­tion.

The rise in outside spend­ing also encour­ages mudsling­ing, often focused on judges’ rulings on the bench. Groups are far more likely to go negat­ive than judi­cial candid­ates, who often have a repu­ta­tional interest in stay­ing above the fray, and whose beha­vior is circum­scribed by judi­cial conduct rules. During the 2015–16 elec­tion cycle, nearly three-quar­ters of all negat­ive ads were paid for by groups.

An ad campaign in Missis­sip­pi’s 2016 supreme court elec­tion is repres­ent­at­ive. The Center for Indi­vidual Free­dom, a Virginia-based organ­iz­a­tion that does not disclose its donors, spent more than $750,000 on attack ads that accused Missis­sippi Supreme Court Justice Jim Kitchens of “siding with child pred­at­ors.” In the case refer­enced in the ad, Kitchens argued that a defend­ant who had been sentenced to death should receive a new trial because his appoin­ted attor­ney was inef­fect­ive, includ­ing having failed to prepare for trial or for his client’s senten­cing. The ad provided none of that context or explan­a­tion.

Together, these trends raise worry­ing ques­tions about whether modern judi­cial elec­tions are compat­ible with judi­cial inde­pend­ence. A grow­ing body of empir­ical research suggests that elec­tion pres­sures impact how judges rule in case­s—­from favor­ing campaign contrib­ut­ors to impos­ing longer crim­inal sentences in elec­tion years.

Many judges share these concerns. In Tennessee, for example, three justices retained their seats after a campaign that focused on their record on the death penalty, includ­ing tele­vi­sion ads tout­ing their record uphold­ing “nearly 90 percent of death penalty sentences.”

In an inter­view with the Marshall Project, one of the candid­ates, now-retired Chief Justice of the Tennessee Supreme Court Gary Wade, wondered about the elec­tion’s long-term impact. “It was not the kind of elec­tion that I thought was over­all a healthy thing for the judi­cial branch,” Wade said. “Whether subtle or unin­ten­tional or not, there may be a tend­ency in the future for appel­late judges to have one eye look­ing over their shoulder.”

And in a 2001 survey of state supreme court, appel­late, and trial judges, 26 percent said they believed campaign contri­bu­tions had at least some impact on judges’ decisions.

Judi­cial elec­tions were first adop­ted as a reform, to respond to concerns that judges were too close to the governors and legis­lat­ors respons­ible for appoint­ing them. States are long over­due for a new reform wave, one that addresses how modern judi­cial elec­tions threaten judi­cial inde­pend­ence. Among other things, states should rethink judi­cial selec­tion, includ­ing consid­er­ing elim­in­at­ing judi­cial elec­tions in favor of a publicly account­able appoint­ment system, and adopt­ing a “one and done” lengthy single term to avoid re-elec­tion pres­sures. More targeted reforms, such as strength­en­ing judi­cial recusal rules and requir­ing the disclos­ure of dark money, would also help mitig­ate special interest influ­ence on the courts.

The courtroom is supposed to be a place where every­one is equal before the law. Recent trends in judi­cial elec­tions put that basic value at risk.

Alicia Bannon is Deputy Director for Program Manage­ment in the Demo­cracy Program at the Bren­nan Center for Justice at New York Univer­sity School of Law. She is the lead author of the report: Who Pays for Judi­cial Races?: The Polit­ics of Judi­cial Elec­tions 2015–16.

(Photo: Joe Gratz / Flickr Commons)