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February 19, 2021

Experts: Dark money taints judicial elections, erodes trust in courts

Dark money killed Justice Louis Butler’s career. At least, that’s how he tells it.

Butler was a trailblazer in Wisconsin’s legal community – the first Black justice on the state supreme court. He was a public defender in Milwaukee when he started climbing the judicial ladder. First, an appointment to municipal court. Then, election to county court. Finally, Butler was appointed to the Wisconsin Supreme Court in 2004.

But it didn’t last. Four years later, in 2008, Butler faced reelection – and lost. He was the first sitting Wisconsin Supreme Court justice to lose re-election since 1967.

What happened? Butler blames $3 million in untraceable money from corporate interests that supported his opponent. The money, he said, paid for a blizzard of ads that distorted his record with racially tinged images and painted him as a friend of murderers.

“When the money comes in and you lose control of the message, you really can’t control what the public is basing its decision on,” Butler said. “Some other entity is putting out your image, either for you or against you, but it may not be you. That’s what we had to deal with.”

Butler told his story in a Feb. 19 program sponsored by the American Bar Association Judicial Division. It was one of three programs at the ABA Midyear Meeting exploring the influence of dark money in judicial elections, ethical implications for judges and possible solutions.

Thirteen experts on three panels agreed that dark money – unreported campaign contributions and expenses that pay for attack ads in judicial elections – are hurting public confidence in American courts.

Such campaign spending is tainting federal and state judges “with powerful suggestions of bias,” said Stephan Landsman, a law professor at DePaul University. “Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself,” Landsman said. Dark money is undermining public perception of impartiality, he concluded.

Abby Wood, a law professor at the University of Southern California, said the problem began years earlier, but was exacerbated by the U.S. Supreme Court’s landmark 2010 ruling in Citizens United v. FEC. In that case, the court held that the First Amendment of the Constitution prohibits the government from restricting corporate political spending.

The 5-4 ruling in that case “allowed a formerly banned class of spenders” to dominate the elections of judges, Wood said. As a result, “politically savvy big-money donors set up corporations to facilitate spending without disclosure.”

Landsman agreed. Citizens United “threw wider the floodgates of dark money,” he said, and today corporate contributions are “pouring into judicial campaigns.”

Public perception of bias among judges is pervasive, Landsman said. Citing research by Charles Geyh of Indiana University, Landsman said 80% of Americans think partisan politics and ideological influence drive the courts, and 58% believe that judges don’t follow the law but instead follow their personal beliefs. Dark money in judicial contests fuels that perception, he said.

Individual lawyers can fight back, said Laurence Pulgram, a San Francisco lawyer and co-chair of the ABA Committee on the American Judicial System.

First, Pulgram said, lawyers can defend judges who are unfairly attacked during elections. He recommended that bar leaders consult the free ABA handbook Rapid Response to Fake News, Misleading Statements and Unjust Criticism of the Judiciary.

Second, he said, lawyers must support civic education and “celebrate our strong and independent judiciary… There’s no better time to talk about that than right now, when the courts have played such a vital role in maintaining the equilibrium in our country” after the 2020 election.

Third, lawyers should support local journalists and newspapers, which are struggling financially. “The national press cannot cover local attacks” on judges and courts, Pulgram said.

Fourth he said, lawyers should lobby legislators to strengthen disclosure rules for donations and expenditures in judicial campaigns.

Finally, Pulgram said, lawyers must vote – and tell others to vote, too.

Wood said the key thing to know is that Congress and federal agencies – the Federal Election Commission, the Internal Revenue Service and the Securities and Exchange Commission – could have regulated dark money in judicial elections after Citizens United, but chose not to. They still can, she said: “Dark money is the result of failure to regulate after Citizens United.”

Butler, the former Wisconsin Supreme Court justice, said he believes change is possible. “It’s my hope we can do something to at least provide for disclosure of who is giving the money and where it’s going,” Butler said. “So, you can track it, so the public is aware of who is trying to impact the selection of judges.”