The Illinois Supreme Court has ruled that judges should avoid even the appearance of impropriety. But that’s getting harder as secret donors pour increasingly huge sums of money into state judicial elections in Illinois and around the country.
How can people not worry that decisions they care about are swayed by large sums flowing unobserved in the background?
State courts often make the final call on such important issues as education, the environment, labor law, tort reform, the death penalty and criminal justice. They also help shape some issues that come before the federal courts. We rely on the judges on appellate and state supreme courts to base their decisions on the law. Big donors, though, clearly think a pile of money on one side can tilt the scales of justice.
A new report from the Brennan Center for Justice at the New York University School of Law suggests, dismayingly, that the big donors are right. It points to Louisiana, where oil and gas companies on one side and plaintiffs’ lawyers on the other together poured nearly $5 million into a race for one seat on the state supreme court. The report also found that during the 2015-16 election cycle, non-party groups spent a record $27.8 million nationwide on supreme court races, accounting for an unprecedented 40 percent of spending.
Illinois, one of 38 states that elect supreme court judges, has no open seats on next year’s ballots and just one retention race, for Justice Anne M. Burke. But recent Illinois Supreme Court campaigns have been high-dollar slugfests where donors evidently hoped to sway court rulings.
And such donors increasingly are unnamed. The Brennan Center’s examination found that the use of “dark money” that can’t be traced to its sources and “gray money” that is difficult and sometimes impossible to trace is “booming.” Across the country, dark money accounts for more than half the judicial donations and gray money accounts for 28 percent. How can voters know if judges are ruling in favor of big donors if voters don’t know who those donors are?
A study by the American Constitution Society found that as the use of TV ads in judicial campaigns went up, the willingness of judges to side with criminal defendants went down. A separate study found the more money judges got from political parties and allied groups, the more they sided with their party in election cases.
Money is funneled into campaign TV ads that tend to be both misleading and effective. In Illinois, past ads suggested Lloyd A. Karmeier, now chief judge of the Illinois Supreme Court, favored predators who abused children. Ads targeting Supreme Court Judge Thomas L. Kilbride, a former chief judge, said he took the side of murderers and child molesters. Neither set of abhorrent claims was justified.
The election of judges was a 19th century reform intended to distance them from political party leaders. But as money from unnamed sources flows into judicial races, the effectiveness of that reform is coming into question. Citizens are left to wonder whether judges feel pressured — perhaps unconsciously — to avoid rulings that would look bad in a TV ad or anger deep-pocketed interests.
Reformers are suggesting judges be required to recuse themselves when cases involving big donors are before them — or that states turn to public financing for judicial campaigns. Illinois also should enact a law similar to one in California that would require campaigns to disclose the original sources of all their donations.
The flow of outside money has been working its way farther and farther down the ballot, from supreme court races to appellate contests and even to the county circuit courts. Reformers expect to see even more of it in the future. Meanwhile, as more judges win office on waves of money from unnamed sources, ordinary citizens will increasingly doubt their ability to be treated equally by the courts.
Do huge sums of undisclosed money create the appearance of impropriety? Any judge who isn’t swayed by huge donations should say ‘yes.’
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