A tsunami of dark money is flooding our justice system — and it's only getting worse

"I don't care too much for money," sang the Beatles in a 1964 hit — "money can't buy me love." But if that well-known lyric suggests that money can't buy what truly matters, a worrying trend in American politics suggests a different lesson. Vast sums of unregulated dark money are increasingly used to buy influence in the justice system, opening up a whole new world of possibilities for money to buy something that should be beyond price.

Revelations last week by the New York Times and ProPublica highlight the urgency of addressing this problem. As the Times reported, "A new conservative nonprofit group scored a $1.6 billion windfall last year via a little-known donor…The source of the money was Barre Seid, an electronics manufacturing mogul, and the donation is among the largest, if not the largest — single contributions ever made to a politically focused nonprofit."

The beneficiary of that unprecedented sum is a newly-created political group controlled by Leonard Leo, a right-wing activist with deep connections to Republican donors and politicians, as well as conservative forces within the Roman Catholic Church. There is little question, as the Times puts it, that Leo has helped to "engineer the conservative dominance of the Supreme Court and to finance battles over abortion rights, voting rights and climate change policy."

Justice is supposed to be blindfolded, not to hold her hand out for people to grease her palm with cash from dubious sources. But, as ProPublica reports, Leo has successfully used dark money to "influence the Supreme Court… and… shift the balance of power throughout the judiciary — in federal district and appellate courts, and state supreme courts, too."

To say that Seid's donation will allow Leo to double down on that effort may be an understatement. (Can one "quadruple down"?) The Times noted, moreover, that the source of these funds is "difficult to trace through public records."

For this grotesque situation, we must thank Citizens United, the infamous Supreme Court decision that opened the way for the flood of unlimited amounts of money now coursing through the American political system.

Although the infusion of dark money to Leo's group is unprecedented in scale, it is just the latest example of the application of dark-money funding to the judicial appointment process at the federal and state levels, which has become a well-financed and highly politicized process. To put it mildly, such a process threatens the independence and impartiality of judges who are the beneficiaries of such largess.

Sen. Sheldon Whitehouse, a Rhode Island Democrat who has long been a forceful critic of the corrupting role of dark money in the judicial process, warns: "Due to the rise in dark money spending in judicial nominating fights, judges can oversee cases involving litigants who spent millions to get them on the bench, creating the potential for serious conflicts of interest that undermine public confidence in the judicial system."

If after Citizens United we cannot curb the use of dark money in our justice system, Congress and state legislatures at least should pass laws to bring it into the open. Citizens have a right to know who finances the nomination and election of the people who will sit in judgment of them. 

Let's start with state judges.

State supreme court justices in 38 of the 50 states are chosen at the ballot box. In our federal system, those justices generally have the last word on matters of state law. A study conducted by political scientist Nicholas LaRowe found that "[s]ince approximately the last decade of the 20th century, judicial elections have come to resemble 'political' campaigns — they are increasingly expensive and competitive, and since 2002, they more often involve discussion and debate of legal policy and issues."

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Outside groups from across the political spectrum have decided that spending money to promote favored candidates for state supreme court seats is a worthwhile investment. (Most of the money, to be fair, is coming from conservative sources, who tend to be better funded overall.)

LaRowe notes that "These 'electoral spenders,' both direct contributors and independent spenders, are strategic, adapting their spending to whatever campaign finance regime they encounter." 

Where campaign financing laws are lax, he says, "they contribute money freely to candidates or parties. When facing regulations such as limits in direct contributions, such actors may spend their money independently of the candidate, or provide alternative means of support such as endorsements or soft-money donations."

It is not surprising that expenditures by outside groups on state supreme court elections escalated after Citizens United. To offer but one example, according to a report from the Center for American Progress, "Recent elections for the Wisconsin Supreme Court have been overwhelmed by 'independent' ads funded by special interests that do not disclose their donors."

In most states, outside groups can also spend money without having to disclose exactly how much money they spend or who their donors are.

"States have not yet adapted to the new campaign finance landscape," as the Center for American Progress puts it. "North Dakota and Indiana, for example, have no rules requiring disclosure of independent spending. Michigan has rules governing independent spending, but they fall well short of full disclosure."

At the federal level, Whitehouse has led the way in calling attention to the increasing role of political action committees (PACs) and dark money groups in financing ad campaigns supporting or opposing Supreme Court nominees.

In a 2019 brief filed with the Court in a Second Amendment case, Whitehouse wrote, "The Supreme Court is not well." 

He laid the blame for the Court's increased politicization and diminished public standing on the flow of big money into the confirmation process, noting that after Donald Trump nominated Brett Kavanaugh to the high court, the NRA "spent $1.2 million on television advertisements" urging his confirmation: One such ad claimed: "Four liberal justices oppose your right to self-defense, four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to self-defense depends on this vote."

Whitehouse highlighted the fact that what he called "an industrial-strength influence campaign aimed at [the] Court" has secured favorable results on behalf of "big funders, corporate influencers, and the political base of the Republican party."

There is undeniably a partisan element to the critique of dark money in the Supreme Court confirmation process. Democrats warned of its corrupting influence on Republican nominees, especially after the Kavanaugh nomination, but fell silent when Joe Biden nominated Ketanji Brown Jackson, who was supported by liberal dark-money groups. Republicans, who had little to say about the problem when Trump put three arch-conservatives on the court, loudly sounded the alarm in her case.

After Jackson's nomination, Sen. Chuck Grassley, R-Iowa, warned that she was "the favorite candidate of these left-wing, dark-money groups." 

Senate Minority Leader Mitch McConnell, who Washington Post columnist Dana Milbank described as the individual "most responsible for the tsunami of unlimited, unregulated 'dark' money that has corrupted and consumed American politics," issued a statement claiming he was "troubled" by "the intensity of Judge Jackson's far-left dark-money fan club." 

While there is little anyone can do about hypocrisy in political life, we can do much more to bring the role of dark money in the justice system into the light, no matter which side of the political fight it is arming.

In late July, Whitehouse testified before the Senate Rules Committee in support of his proposed DISCLOSE Act, legislation that would "require groups that spend money on ads supporting or opposing judicial nominees to disclose their donors… and would identify donors who fund advocacy campaigns aimed at confirming their favored nominees." 

Passing that bill, along with similar legislation at the state level, would be an important step forward in addressing the threat that while money may not buy love, it can buy "justice."