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February 20, 2021

Solutions proposed to curb dark money in judicial elections, but no easy fixes

To fight the corrupting influence of unlimited, unreported money in judicial elections, lawmakers should require greater public disclosure of donations and expenditures and tighten rules on how judges recuse themselves from cases involving donors.

That was the conclusion of five experts who met Feb. 19 to discuss how to reduce the influence of dark money in judicial elections. 

The program, titled “Combating Dark Money Influence: Procedural Strategies and Innovations,” was sponsored by the American Bar Association Judicial Division. It was one of three panel discussions at the ABA Midyear Meeting devoted the problem of dark money in judges’ elections.

Such spending “poses a threat to judicial independence,” said Judge J. Michelle Childs of the U.S. District Court in South Carolina, who moderated the program. “There are well-founded concerns that dark money has created ethical implications for elected judges who are circumscribed by professional conduct rules.”

Stephen Saltzburg, a law professor at George Washington University, agreed. “Money is the name of the game in state elections,” Saltzburg said. “There’s no way around it. Judges may not be politicians, but they are candidates. And candidates need to have campaigns, and campaigns… require funds. And those funds, we’ve seen, are difficult to control, difficult to trace and it’s difficult to draft disclosure rules that really work.”

The problem of dark money stems, in part, from a landmark 1976 Supreme Court ruling in the case of Buckley v. Valeo, said Erwin Chemerinsky, dean of the University of California Berkeley School of Law. In that case, the court ruled that limits on campaign spending violate the First Amendment because they restrict free speech.

“I worry that the Supreme Court has taken a figurative expression – ‘money talks’ – far too literally,” Chemerinsky said.

Chemerinsky offered three solutions to the problem.

First, he said, legislators should impose stricter requirements on the disclosure of campaign donations and expenditures. Second, legislators should create stronger recusal requirements for judges. Finally, Chemerinsky said he hoped the Supreme Court would consider expenditure limits in judicial elections, even though they are not allowed in other elections.

The three proposals combined “would go a long way to solving the corrosive effects of spending with regard to judicial campaigns,” Chemerinsky said.

Charles Silver, a law professor at the University of Texas, proposed coming at the problem from a different direction by asking, “What are the motivations people have for spending a lot of money?” To reduce spending, Silver said, “Think about ways to weaken their motivations.”

Silver proposed making individual judges less important, especially at the U.S. Supreme Court. He suggested structuring the Supreme Court like the appellate courts – expanding it from nine justices to 40 or 50 justices, hearing cases in randomly chosen panels of seven or nine.

The court could expand gradually over a number of years, perhaps with three or four appointments per president, Silver said.

“Litigants would no longer be able to pitch their cases to the swing judge,” Silver said. “They wouldn’t even know which justices would sit on their case until the panel is chosen.” And there wouldn’t even be a swing justice on such a large Supreme Court, he added.

Under this system, Silver said, “It would not matter very much who was nominated to fill a vacancy. And so the motivation to spend money on these candidacies would be greatly diminished and the partisan interest in the appointment of particular individuals would be greatly reduced as well.”

Paula Frederick, general counsel of the State Bar of Georgia, said the most practical solution to the dark money problem would be revising the rules of judicial conduct. One fix, Frederick suggested, would be to create a panel of outside judges to decide when a judge hearing a case should recuse himself. “It makes no sense to me that the judge complained against quite often is the one deciding the motion to recuse,” she said.

Saltzburg went a step further and proposed that states give lawyers the right to strike a judge for any reason, like the right of peremptory challenge against jurors.

Landsburg agreed that judges should not be allowed to decide whether to recuse themselves from cases. “We will really be helping the judges if we don’t put them on the spot and force them to rule on their own fairness,” he said. “That doesn’t make any sense. It’s not good for them and it’s not good for anybody.”

Read part 1 on dark money and judicial elections here.