PRESIDENT’S REPORT
Justice “Justice Must Satisfy the Appearance of Justice”
A priority for the Arkansas Bar Association in the 2021 General Assembly is to advance our bill to require disclosure of the identities of those who make contributions to independent expenditure committees in an attempt to influence Arkansas appellate judicial elections. In this context, an independent expenditure is an expenditure within 120 days of an election that names or depicts a candidate and is not made in concert with or at the request or suggestion of a candidate or an authorized committee or agent of the candidate. The Center for Responsive Politics reports that independent expenditures in federal elections have risen 76% in four years from $1.48 billion in 2016 to $2.6 billion in 2020.1 Independent expenditures are not new to Arkansas appellate judicial elections. In the category of television advertising alone, appellate judicial candidates were outspent almost three to one by outside groups from 2014–2018. This data comes from The Brennan Center for Justice, the Arkansas Ethics Commission, the Arkansas Secretary of State and the FCC. This kind of money has the potential to erode public confidence in the judiciary. According to the Brennan Center, a 2010 survey revealed that 70% of Democrats and 70% of Republicans believe that campaign expenditures have a significant impact on courtroom decisions, and only 23% of voters believe campaign expenditures have little or no influence on elected judges.2 These “dark money” expenditures have no place in judicial races. The claims made in the ads can appear to be from the candidate, yet may not be permitted by Judicial Canons. Dark money expenditures deny the public and the candidates an opportunity to challenge the credibility of these speakers. And, a candidate who is attacked may be also restricted by Judicial Canons from making an effective response.
Paul W. Keith is the President of the Arkansas Bar Association. He is a member of Gibson & Keith, Monticello
It is against this backdrop that the Jurisprudence and Law Reform Committee of the Association prepared a bill3 to require Independent Expenditure Committees to identify the sources of their millions. I say “millions” because in the election cycles of 2014–2018, Independent Expenditure Committees spent at least $2,999,995.00 on the races for Arkansas’ appellate courts. By contrast, the candidates in those races spent just $1,071,673.99. To say the least, this is high-dollar meddling in the affairs of Arkansas citizens. Public confidence in the judiciary is no small matter. Writing for the majority in 2015, Chief Justice John Roberts said that the Court has “recognized the ‘vital state interest’ in safeguarding “‘public confidence in the fairness and integrity of the nation’s elected judges.”’”4 The Chief Justice went on to note, in the majority opinion, “[a]s Justice Frankfurter once put it for the Court, ‘justice must satisfy the appearance of justice.’ It follows that public perception of judicial integrity is ‘a state interest of the highest order.’”5 The founders of our republic recognized that public confidence is crucial because the judiciary’s power is derived from the respect and trust reposed in it. “The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary ‘“has no influence over either the sword or the purse; ... neither force nor will but merely judgment.”’”6 As lawyers and guardians of the Constitution, we must do all we can to preserve and enhance public confidence in the judiciary. It is worth noting that the Association bill is narrowly tailored in at least three ways. First, it is restricted to elections for appellate judgeships. Second, the Act will not interfere with citizens’ groups who wish to survey candidates and to communicate
the survey results to their members or with the ordinary business of newspapers and broadcasters. Third, the bill does not propose a limit on contributions. But when our citizens are presented with an ad for or against an appellate judicial candidate, they deserve to know who is behind the message. One has but to remember Justice Brandeis’ admonition on the best disinfectant. “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”7 If Arkansas voters can sit on juries where life, death, and imprisonment hang in the balance, they can decide how to vote in a judicial race without “advice” from unidentified deep-pocketed intermeddlers. We can do better and we must. Endnotes: 1. https://www.opensecrets.org/outsidespending/ 2. Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), available at http://tinyurl.com/2c422fs. 3. The bill is entitled: An Act To Protect Public Confidence in the Integrity of Appellate Judicial Elections; to Require Disclosure and Reporting of Noncandidate Expenditures Pertaining to Appellate Judicial Elections; To Empower Citizens to Compel Transparency from Persons Making Noncandidate Expenditures; to Adopt New Laws Concerning Appellate Judicial Campaigns; and For Other Purposes. 4. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1659 (2015) (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009). 5. Id. at 1666 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954), citing Caperton, supra). 6. The Federalist No. 78, p. 465 (A. Hamilton), quoted by, Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666 supra. 7. Louis D. Brandeis, Harper’s Weekly, Dec. 30, 1913. ■
Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
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