Our Board Member and retired Montana Supreme Court Justice, James Nelson discusses secret money and the future of judicial elections with The Judicial Edge, a newsletter produced by the National Judicial College.

For judges and judicial candidates, fundraising for elections can bring about ethical pitfalls and the public mistrust regarding the influence donors have on the judge. An excerpt of Justice Nelson’s thoughts on the influence of big money in judicial elections is shared below.

To read the original article in its entirety, click here.

Current cosmological theory predicts that some 74% of the known universe is composed of a pervasive dark energy — an invisible substance that may ultimately accelerate the universe into expansive oblivion.

Not unlike dark energy, dark money spawned by the 2010 Citizens United case has come to dominate the universe of judicial elections and, if left unchecked, may well drive our expectation of a fair, impartial and independent judiciary into extinction.

Dark money is a term used to describe “political spending by innocuously named groups whose own donors — the source of the money — [are] allowed to remain hidden.” The source of these funds include 501(c)(3) groups and social welfare organizations — which, though required to report the amount of money they spend on electioneering — either directly or through contributions to super-PACs — are not required to disclose the identities of their donors. The Citizens United Court determined that money is a form of political speech protected by the First Amendment and, basically, that dark money organizations and super-PACs could expend unlimited sums of money to influence elections. The Court stated, while money contributed directly to a campaign breeds quid pro quo corruption, money expended indirectly for or against a candidate does not carry with it a corruptive effect.

In his dissent to the Citizens United opinion, Justice Stevens predicted that the floodgates of money released as a result of the Court’s decision, would ultimately compromise the integrity of judicial elections as well. The justice’s fears were well-founded. As reported by the Brennan Center for Justice, “[o]n Election Day 2010, for the first time in a generation, three state supreme court justices were swept out of office in a retention election when voters expressed anger over a single controversial decision on same sex marriage.” The voter’s anger was fueled by a special interest campaign which poured nearly a million dollars into Iowa to unseat the justices. Matters only worsened. Since 2010, dark money spenders have expended significant amounts of money — funneled through the U.S. Chamber of Commerce, and special interest and partisan groups — to influence judicial elections in North Carolina, Alabama, Arkansas, Tennessee, and in Montana. The independent news organization, Mother Jones magazine, reports that donations to judicial candidates ballooned from some $83 million in the 1990s to $206 million in the 2000s. States affected included Texas, Alabama, Illinois, Ohio, Pennsylvania, Michigan, Mississippi, Louisiana, West Virginia, North Carolina and Florida.

Non-Partisan groups that have studied influence that money has and is playing in judicial elections paint a bleak future for a fair, independent and impartial judiciary. A few super-spenders are maintaining a dominant role in judicial elections. Increasingly, state judicial elections are being characterized by costly TV ad campaigns, character attacks, misinformation, attacks on merit selection of judges, and pushes to roll back public financing of judicial races. Studies have shown the mega-spending actually influences judicial decision making in civil and in criminal cases.

Thirty-nine states elect their judiciaries. While it might be argued that the answer to the influence of big money is merit selection, there are two problems: first, as noted above, the mega-spenders are attempting to roll back merit selection laws; and, second, the appointers, who typically include legislators, governors, and committees, are often also under the influence of dark money. Indeed, the likely only real solution to this corruption of all three branches of government is a constitutional amendment to require real campaign finance reform and to undo Citizens United.

Will dark money ultimately annihilate our gold-standard of a fair, independent and impartial judiciary? If dark money keeps up its present exponential expansion, that result is likely. And, in the words of the dark money folks, you can take that to the bank!