February 16, 2021

Midyear 2021: Seeking solutions to ‘dark money’ in judicial elections

On Oct. 13, in a marble hearing room, Sen. Sheldon Whitehouse laid out his grim vision of how the American justice system is being perverted.

Using posters, charts and a red marker, the Rhode Island Democrat spent 30 minutes detailing a “scheme” by conservative billionaires to appoint judges and control the agenda of American courts. He said this shadow oligarchy is working to weaken voting, erode government regulations, “knock down” civil juries and allow unlimited dark money in politics by anonymously spending millions of dollars on judges’ election campaigns and financing groups that coordinate amicus briefs.

Whitehouse, a former Rhode Island attorney general, made his case on the second day of the confirmation hearings for Amy Coney Barrett to the U.S. Supreme Court.

“This is, to me, a pretty big deal,” Whitehouse told his colleagues on the Senate Judiciary Committee. “I’ve never seen this around any court that I’ve ever been involved with, where there’s this much dark money and this much influence being used.”

On Friday, Feb. 19, the American Bar Association Judicial Division will offer three expert panels at the ABA Virtual Midyear Meeting to shine a light on the problem of dark money in judicial elections.

Each session will focus on a different aspect of the issue. The first will discuss the impact of dark money, the second will explore ethical issues for judges and the third will highlight possible solutions. All will be held online.

Stephan Landsman, an emeritus professor of law at DePaul University, is organizing the CLE. He was a plaintiff’s attorney in the case of Hale v. State Farm, in which more than 1 million State Farm customers alleged that the insurance company had funneled money to an Illinois Supreme Court justice’s campaign, who then ruled with the majority to reverse a $1 billion jury verdict. State Farm settled the Hale case for $250 million in 2018.

Landsman said the trend of heavy money in judicial election campaigns began long before the landmark 2010 ruling by the U.S. Supreme Court in Citizens United, which held that the government cannot strict corporations from donating to political campaigns. “By 2004,” he said, “there was a sense that we were approaching a crisis. Whatever restraints might have been had evaporated.”

The problem has gotten worse over the years, Landman added, and “I don’t see a quick and easy fix here.”

The three panels will be:

Panel 1 – “The Growing Influence of Dark Money in the Judicial Selection Process” – 10:30 a.m. CT – Will focus on the rise of dark money, recent efforts to combat it and the role of the organized bar in confronting misinformation about judicial candidates. Panelists will be:

  • Stephan Landsman, DePaul College of Law – moderator
  • Robert Clifford, Clifford Law Offices, Chicago
  • Laurence Pulgram, Fenwick law firm, San Francisco
  • Abby Wood, University of Southern California

Panel 2 – “Maintaining Public Confidence in the Courts in the Age of Dark Money” – 1 p.m. CT – Will focus on the psychological and ethical perspectives of dark money ads, including the erosion of public confidence in courts’ impartiality, implications for recusal, and how judges can ethically combat disinformation campaigns funded with outside money. Panelists will be:

  • Carolyn A. Dubay, executive director of the North Carolina Judicial Standards Commission – moderator
  • Judge Virginia Kendall, U.S. District Court, Northern District of Illinois
  • Louis Butler, former justice, Wisconsin Supreme Court
  • Tom Tyler, Yale Law School

Panel 3 – “Combatting Dark Money Influence: Procedural Strategies and Innovations” – 2:45 p.m. CT – Will focus on strategies to combat the damaging effect of dark money, including procedural rule changes, disciplinary actions, changes to recusal rules, revisions to amicus brief rules, and the contempt power against parties trying to influence judicial outcomes through dark money ads. Panelists will be:

  • Judge Michelle Childs, U.S. District Court, South Carolina - moderator
  • Erwin Chemerinsky, dean, University of California Berkeley School of Law
  • Stephen Saltzburg, George Washington University School of Law
  • Charles Silver, University of Texas School of Law
  • Paula Frederick, general counsel, State Bar of Georgia