The Threat of Big Money to Our Judicial System
By: American Promise
Tags: Campaign Finance, Supreme Court, Citizens United, Money In Politics, Judicial System

The Threat of Big Money to Our Judicial System

By James C. Nelson and Walter (Bud) Carpeneti

While the recent nomination of Amy Coney Barrett to the U.S. Supreme Court sparked debates and made headlines, one major player in the process didn’t get as much attention as it should: Big money.

Big money groups on both sides of the aisle spent millions in advertising to support or oppose President Donald Trump’s nominee. As two who have served on the Supreme Court of our respective states — Alaska and Montana — we have seen the insidious and corrupting power of money in our political system. It now threatens the justice system itself.

The wolf of money, dressed in the sheep-suit of corporate political free speech, is driving and corrupting our elections, our political processes, our public officials; it is drowning out the voices of ordinary citizens; it is responsible for the flood of false information and misleading campaign ads and media; and it is diluting the franchise of ordinary voters. Now it threatens to do the same to our courts and judges. In short, it is threatening our constitutional democracy.

Money is not speech, it is power. The concentration of this power begets more concentrated power.

Only 0.1% of the voting age population funds the massive, media and attack-ad driven theater we characterize as campaigns for public office. More than 90% of the independent expenditures in recent elections came from only 300 donors. Nearly half of SuperPAC contributions in the past decade have come from just 25 individuals; 30% has come from six people.

The cancer of mega-money is defiling the third branch of government in much of the country as it has the legislative and executive branches. In Montana, where judicial elections are supposed to be nonpartisan, political parties, Super PACs, misleading and false campaigns, and dark money expenditures have turned elections into partisan slug-fests.

In Alaska, the threat of outside money is palpable and growing. Recent retention elections have seen ever-larger amounts of dark money, from outside groups, flowing in to fund last-minute attacks on judges standing for retention.

Before the U.S. Supreme Court’s failed experiment in creative First Amendment interpretation to unleash unlimited money in our elections, when government officials violated the law or constitution and justice was required or found wanting, there was a fair, impartial and independent backstop to guarantee that the rule of law prevailed: our state and federal courts and judges.

That backstop is rapidly eroding.

When big money threatens to dictate who gets appointed or elected to the courts, when we risk the situation that individuals take the bench not on the basis of merit, experience and scholarship but because the person elected or appointed is in the pocket of whomever or whatever organization paid the most to put him or her in judicial robes, then we effectively lose the third branch of government — the branch intended to provide the check and balance to the other two.

Maybe worse, our courts and judiciary will be distrusted; justice will be denied; and the rule of law be rendered meaningless — a fraud, the exclusive property of power and privilege.

It doesn’t have to be this way. The out-of-control money influence resulted from a series of decisions from the U.S. Supreme Court that erroneously equated free speech with spending money to influence elections. The dam truly broke in 2010 with the Court’s decision in Citizens United v. Federal Election Commission. In that case, the Court held that the Bipartisan Campaign Reform Act was unconstitutional, calling a modest limit on election spending by unions and corporations a violation of the First Amendment’s freedom of speech. Contrary to evidence, the Court announced that independent spending (i.e. Super PACs) does not cause corruption. Really?

Money corrupts, and enough of it corrupts absolutely.

That’s why we joined American Promise when we retired from the Montana Supreme Court and the Alaska Supreme Court. American Promise is Americans working together across the country to ratify an amendment to the U.S. Constitution to enable reasonable and effective limits on money in our political system. Every American should have a voice, representation, and justified faith in our government of the people, including a fair and independent judiciary.

Now it is time for all Americans to rise to the defense of our republic and ratify this amendment to renew our constitutional democracy for generations to come.