Icon (Close Menu)

Logout

Confronting Dark Money in Judicial Races (Scott C. Trotter Commentary)

3 min read

Dismay is common across Arkansas that we can do nothing to restrain the flood of “dark money” advertising against candidates for election to the state Supreme Court. However, those expressing this concern may not be aware that the U.S. Supreme Court in the 2010 Citizens United decision did not bar states from imposing limits on dark money spending or disclosure of dark money contributors in state judicial races. The court also did not strike disclosure requirements, as opposed to spending limits, for dark money in political races.

More important, in 2014 in Williams-Yulee v. Florida Bar, the Supreme Court decided that precedents like Citizens United that applied the First Amendment to political races have little bearing on standards for judicial elections. The court reasoned that a state’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections, because a judge’s role on the bench differs from that of a politician.

This offers an opportunity for state law to reasonably limit spending by and require disclosure of contributors to committees that spend to influence judicial elections separate from the candidates’ campaigns. In Arkansas, as of the March 1 election, we witnessed extra evidence of the need to take action to preserve public confidence in the integrity of judicial elections.

In the election for chief justice of the Arkansas Supreme Court, one independent out-of-state dark money group spent around $600,000 on advertisements attacking Justice Courtney Goodson, while another group spent around $400,000 to discredit Clark Mason in his bid to become a justice. Their opponents, Judge Dan Kemp and Judge Shawn Womack, were elected by wide margins. Both winners disavowed any involvement with the dark money groups, and all candidates decried the dark money onslaught.

Many voters detest that our judicial elections can be influenced by substantial dark money spending with contributors undisclosed. This directly undermines public confidence in our judiciary. We should advocate state legislation to curb the dark money abuses through spending limits and disclosure of contributors in judicial elections.

We also must not overlook that campaign finance limits and disclosure should be included in any proposal to switch to merit selection of appellate judges appointed by the governor. Merit selection often includes “retention” elections after a judge has served a period of years, and dark money should not dominate those elections either.

Any merit selection proposal that fails to address campaign finance limits and disclosure for retention elections is not likely to be supported by voters, who must approve an amendment to the Arkansas Constitution to adopt merit selection. The process of designing a merit selection proposal also should include ample opportunity for public input, and Gov. Asa Hutchinson should make sure that happens as he promotes merit selection.

Merit selection of state appellate judges is most commonly associated with the Missouri Plan, adopted in 1940. Variants of that plan are now used in 23 states for state supreme courts. Some opponents in Arkansas cite examples where sitting justices in other states have been opposed in retention elections by ads targeting a justice’s decisions on narrow issues.

While it may be worthwhile to ask Arkansas voters to consider merit selection of appellate judges, any proposal must draw on input from the public as well as address campaign finance limits and disclosure if the proposal includes retention elections. Whether or not to include retention elections in a merit selection system should be subjected to debate.

In the meantime, the Arkansas Legislature should reform our campaign finance laws that govern current judicial elections. State law can and should distinguish between campaign finance restrictions and disclosure for judicial versus political elections. In my view, Supreme Court precedent will not stand in the way.


Scott C. Trotter is a Little Rock attorney in private practice. For years he has contributed to drafting Arkansas campaign finance and public official ethics laws. Email him at STrotter@TrotterFirm.com.
Send this to a friend