Nonprofit Scours FCC Records to Find “Dark Money” in Judicial Elections

October 30, 2016; Tampa Bay Times

Many states have elections to appoint State Supreme Court judges. And where there are elections, there are campaign contributions. While candidates must report direct contributions to their campaign, monies can be anonymously spent on ads to support particular issues, framing them in a way that favors one candidate over the field. This “dark money” is not reported to election officials, causing concern among many voters that these funds curry favor with the elected official.

Enter the Brennan Center for Justice, a nonprofit that seeks to find these funds by scouring FCC records. In these records, they can find ad purchases by PACs. The hope is that it will give the voters more information and a better understanding of the agents involved in the election.

In an election year where corruption and pay-for-play have been at the forefront, these are certainly valid concerns to address. Some jurisdictions, like Louisiana, have proposed legislation to try to mitigate some of the issues raised by judicial elections, such as a nomination committee that selects a few merit-based judges from which is chosen a winner. However, Louisiana has not had any luck in passing such measures.

Judges can be elected or appointed, and can serve for terms or for life. Each system has its pros and cons. When judges are elected, it gives the constituency a say over who will hear cases important to its state. There is a reason democracy is popular: People want to have a say. Working against that, however, is what is highlighted in this article. When an appointment is decided by election, there will always be concerns of corruption through campaign contributions. Not to mention the electorate might not be that knowledgeable about law. Judges have spent three years in law school and countless hours practicing law and judging cases. Can the electorate truly know who the better candidate is?

On the other hand, appointed judges can be picked based on merit, presumably by those with more knowledge of effective and fair judging. The obvious drawback, though, is that the electorate only has an indirect way of selecting a judge. There is little that can be done to avoid shows of favoritism in the selection process. Politics will still be a factor.

When it comes to terms versus life, there are again, pros and cons. When an official faces a term system, campaign fundraising comes into play, if it is an election system. Multiple terms opens the door for multiple opportunities to be removed for poor performance but also to gain influence through campaign contributions. That is exactly what worries many. Limiting terms might help by limiting the iterations of the process, but it does not seem likely to have a tremendous impact. Meanwhile, lifetime positions on the Supreme Court (a la SCOTUS) can help remove judges from the political process, but they still face political pressures to earn a spot on the bench. Not to mention, there is a great deal of rigidity in a lifetime appointment. If the needs of a constituency suddenly find themselves incongruous with the Supreme Court, there is little to be done.

Why is this important? In short, like every other sector, the nonprofit sector faces legal challenges. All levels of the judicial system can decide these challenges, so nonprofit leaders need to know what the rules of the game are and who is playing. As Hellend and Tabarrok (1999) show, tort awards are higher for in-state plaintiffs against out-of-state defendants in election decided states than in appointment decided states. That has tremendous implications for a nonprofit facing a civil trial. In a 2004 paper, Hanssen proposes that the ideal level of judicial independence is achieved in jurisdictions where parties are extremely competitive and ideologies are extremely different. That is of little consolation to states where one or both of those conditions fail, making the electoral process incapable of reaching a judicial independence for many states.

At the end of the day, it is important for the citizens of the state to decide which set of pros and cons will be most beneficial and find the politicians—and yes, that means judges too—who share those preferences. It is highly unlikely that it will be a one-size-fits-all scenario, and different jurisdictions will find a different system more suitable. One thing remains constant, though, and that is, it will take votes to make it happen.

In the meantime, voters will continue to count on the research and hard work of nonprofits like the Brennan Center for Justice to shine a light on the “dark money” in the political system.—Sean Watterson