If Arkansas wants to continue electing judges, it must make plans to keep the elections honest and safe from toxic campaign tactics. That’s the conclusion of a task force, which studied and discussed the issue for more than a year, and issued a report last week.
The first question is whether the state should continue electing its judges; changing that would require a constitutional amendment. There has long been a strong belief in the legal community that electing judges is a bad idea, and the elections were changed to nonpartisan in hopes of taking politics out of the campaigns.
The nonpartisan elections, along with the code of judicial conduct, leave us with judicial campaigns in which candidates can say little more of substance than what’s on their resumes and who their best friend is. Being able to print the word "judge" on the ballot and campaign signs is considered a major tactical advantage.
The fact is that voters don’t have much on which to base their votes.
Worse, the current system provides that judicial elections are held at the same time as party primaries, meaning they get lost in the rhetoric of more high-profile races, and then any runoffs that result don’t come until the general election, more than five months later. Fund-raising limitations also favor judicial candidates who can self-fund their own campaigns.
The system cries for reform. Many judges and attorneys favor the so-called Missouri Plan, under which the governor appoints judges who then stand for re-election periodically.
However, the task force, created more than a year ago by the Arkansas Bar Association and the state Judicial Council, sees great danger for the current system, and even the Missouri Plan would be subject to abuse.
State Supreme Court Justice Robert L. Brown, as chairman of the task force, presented its recommendations to the ABA House of Delegates Saturday, and Circuit Judge Ralph Wilson of Osceola, head of the Judicial Council and a task force member, earlier in the week presented the plan to judges.
Members of the task force foresee judicial elections in which special interest groups pour big money into defeating candidates they don’t like. Thanks to the U.S. Supreme Court’s 5-4 decision in the case of Citizens United v. Federal Election Commission, special interest groups can raise huge sums from anonymous donors and spend the money to defeat certain candidates without being subject to the same sort of restrictions that individuals have.
This year’s presidential election, which will feature attack ads funded by special interest groups from both sides of the political spectrum, will show just how dangerous the Citizens United decision can be.
And it won’t stop at the federal level. We’ve already seen a lot of this money spent in Arkansas congressional elections, and the real campaign is just beginning.
Judicial elections are especially subject to such outside interference because few candidates are well-financed enough to fight back and they’re limited in what they can discuss.
Justice Brown could have been a prime example except that he is retiring after a distinguished career on the state’s highest court. But in 2010 he wrote the opinion in the unanimous decision striking down the initiated act that prohibited unmarried, co-habitating couples from adopting children or serving as foster parents. That infuriated some special interest groups, and he could certainly have been a target if he ran again.
It has happened increasingly in other states. As the task force began its work last year, Brown cited a number of cases in a law-review article. And the most extreme example occurred in 2008 when a coal company executive, whose corporation lost a lawsuit, then poured $3 million into attack ads to help defeat an incumbent Supreme Court judge, then won his case on appeal with the judge he helped elect casting the deciding vote.
Fortunately, the U.S. Supreme Court, by a 5-4 vote, ruled that the judge should have recused himself in the case.
The Arkansas task force recommended establishing a nonprofit organization, the Arkansas Judicial Campaign and Education Committee Inc., to monitor advertising in judicial elections and to respond to false communications. The corporation would be paid for through private funds and tax-deductible contributions and would be independent of the bar association, Judicial Council and state government.
Brown said in a letter to Wilson and Tom Womack of Jonesboro, president of the ABA, that the task force had studied a wide range of reform needs, including the development of a Web-based voters’ guide of judicial candidates, public financing of judicial elections and changes in the election timetable. Such missions could be assigned to the new corporation, beginning with the elections of 2014.
The task force studied similar groups established in other states, including North Carolina, Alabama and Kentucky.
While it’s not clear what teeth such a watchdog organization would have, Brown suggested in his report that it could form an action group called the Judicial Fair Advertising Compliance Team to monitor media communications and respond as soon as possible to false communications. The team could then issue a press release and-or ask for the offending communications to be removed.
When you’re talking about expensive commercials being run by a television industry that depends heavily on political advertising, the team would have a tough challenge, but selection of judges in the state is a critical issue.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at email@example.com.