Dark Matters

So-called dark money in judicial elections threatens to undermine public confidence in the courts. What can the legal profession do to combat it?

Fighting Dark Money in Judicial Elections
Robert A. Clifford

Robert A. Clifford

December 13, 2019 08:30 AM

In high-stakes litigation, judicial recusal—or lack thereof—can affect the public’s perception of the judiciary as unbiased and objective. This past September 14, on the eve of the bellwether opioid-litigation trial in Ohio, defendant giant retail pharmacy chains and drug distributors filed a motion to recuse the presiding federal district judge from the highly charged case. The stakes were high; just days earlier, a separate state case in Oklahoma resulted in a $572 million judgment against opioid manufacturer Johnson & Johnson.

Stakes were high as well in a recent Illinois class action, in which a state Supreme Court justice refused to recuse himself from litigation involving State Farm following a $1.2 billion verdict against the insurance giant for replacing genuine manufacturer automotive parts with aftermarket parts for millions of policyholders. The judge, Lloyd Karmeier, had accepted “dark money” contributions from State Farm during his election campaign immediately prior to his decision—yet he remained on the case and, in fact, cast the deciding vote to overturn the verdict. Protracted litigation over Judge Karmeier’s refusal to recuse himself was later settled for $250 million. (“Dark money” refers to campaign contributions funneled through nonprofit groups that are not required to list their donors. The actual source of the funds is therefore deliberately withheld from the public eye, and not revealed in campaign disclosures or to the media.)

The rules governing recusal merit closer scrutiny. Recently, the American Bar Association clarified one such rule regarding judges’ ties to lawyers, and what sorts of conduct would demand recusal. Model Code of Judicial Conduct Rule 2.11 states that impartiality can be reasonably questioned when the judge, his or her domestic partner, or a “person within the third degree of relationship of either of them,” is a party or lawyer involved in the proceedings.

“Judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties,” the seven-page ABA memo, released this past September 7, stated. “Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge—or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties—depends on the circumstances.”

Acquaintances are typically people with whom a relationship is “coincidental or relatively superficial,” according to the ABA’s Formal Opinion 488. Generally, they might be individuals who run into each other at their children’s school functions or at local businesses, or who socialize with mutual friends. In the context of the legal community, the opinion mentions those who attend the same bar groups or who may have represented co-parties in litigation at one point. “Generally, neither the judge nor the lawyer seeks contact with the other, but they greet each other amicably and are cordial when their lives intersect,” the memo added.

In the Illinois litigation, the plaintiffs alleged that Judge Karmeier had associated with top State Farm executives outside of court. He also accepted dark money from State Farm through tort-reform organizations that served as conduits for contributions in his race, which cost millions of dollars.

The ABA’s Model Rules of Judicial Conduct do not spell out when recusal is appropriate under these circumstances, so it is left to the judge’s discretion. There is no recourse, even if the judge’s decision appears to stretch the rules or a conflict is apparent.

As many as 38 states hold elections, either partisan or non-, for judges. What’s really at stake, then, is the public’s confidence in the integrity and independence of the judiciary in the absence of election-funding transparency. What happens to such confidence when judges’ campaigns are being bankrolled by organizations that dole out money to like-minded candidates for various offices?

During the 2018 election cycle, the Center for Responsive Politics reported, shell corporations and dark-money groups that aren’t required to disclose their donors gave more than $176 million to the type of political action committees known as Super PACs. “The surge in dark-money giving came as Super PACs spent nearly $818 million in the 2018 elections,” the Center noted, “a monumental increase from the $345 million they spent in the previous midterm cycle.”

Clearly, sizable dark-money donations become an issue of greater salience when they case doubt on a judge’s ability to be objective. Those who donate large sums do so to benefit themselves in some way; it is not a selfless act. All 50 states require individual donors who make campaign contributions outside of PACs to do so openly, and the list of donors (and amounts) is made public, as well it should be. Yet Congress and the courts still allow dark money to undermine the integrity and independence of the judiciary through its shroud of secrecy.

Until legislators and judges take steps to prevent dark-money donations outright, the ABA and state bar groups should formulate specific opinions as to how such donations to judges ought to be handled. Judicial candidates themselves should consider meaningful disclosure by taking a “no dark money” pledge when running, so that even the appearance of propriety, as required by judicial rules, is upheld.

The wink-and-nod understanding of philosophic or ideological expectations must come to an end, so judges will feel compelled to disqualify themselves from court decisions that affect companies’ bottom lines. The administration of justice through the courts is where everyone is equal before the law. Dark money undermines that fundamental constitutional right when donors are unknown, and contributions are unknowable.

Robert Clifford is the founder of Clifford Law Offices in Chicago, an internationally recognized plaintiffs’ personal injury firm. Bob has represented those injured or killed in nearly every major commercial airline crash in the U.S. in the last four decades. He was appointed lead counsel in the Ethiopian Airlines Flight 302 litigation in the Northern District of Illinois. He has been listed in Best Lawyers since its inception.


Related Articles

Protecting Small Business Owners: Trial Experts Connick Law LLC Notoriously Successful with Fire Litigation

by Justin Smulison

When small business owners become the target of insurance companies in fire-related lawsuits, hiring a firm with a reputation for understanding the science of fire suppression trials can save their livelihoods.

Gold Indoor Sprinkler Heads on Red Background

Will Recent Boeing Settlements Create Tailwinds In Corporate Law?

by Justin Smulison

Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.

Recent Boeing Settlements and Corporate Law

Colorado's Best Lawyers 2022

by Best Lawyers

Our 2022 Colorado's Best Lawyers publication features top-ranked legal talent in Boulder, Denver and Western Colorado.

Colorado's Best Lawyers 2022

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries

by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

Look for the Zoom Label

by Anne R. Yuengert and Matthew C. Lonergan

Will the virtual platforms that got such a boost during the pandemic replace how you interact with your employees, unions, and lawyers?

Virtual Platforms Replacing Work Interactions

Discovery in the Time of COVID-19

by H. Barber Boone

The pandemic has affected the vital process of legal discovery in ways both good and bad. Which changes are likely to become widely accepted in the years ahead?

The Impact of COVID-19 on E-Discovery

Busting a Trust

by Joseph Marrs

The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.

Rules Governing Trusts and Asset Distribution

The Next Chapter

by Patrick M. Shelby

Among its uncountable other disruptions, the pandemic upended U.S. bankruptcy procedures. Congressional relief, legislative changes, amended legal provisions: What lies ahead for those looking to file?

COVID-19's Impacts on Bankruptcy Procedures

Phoning It In

by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

Compelled to Compete

by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Meeting Halfway

by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

Look Out Below

by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Family Law – Sometimes All in the Family

by Justin Smulison

Led by a father-and-son team of Family Law lawyers and trial advocates, with the support and assistance of family members, Blevans & Blevans, LLP continues its tradition of excellence serving the Northern California Bay Area in 2020 and beyond.

Blevans & Blevans

Achieving Justice For Essential Workers

by Justin Smulison

Patrick Regan of Regan Zambri Long describes how the recent resolution of a corporate negligence case brought closure to survivors of a fatal 2016 apartment building explosion.

Patrick Regan Best Lawyers 2021

Is It Live . . . Or Is It Virtual?

by Adrian L. Bastianelli III, Kevin J. O'Connor, Paulo Flores and Robert S. Peckar

Mediation via Zoom is just one of the legal-industry oddities the pandemic has wrought. Here’s a cheat sheet for how to make it work for you—and some thoughts on whether it’s here to stay.

Virtual Mediation

Equal to the Task

by Joyce D. Edelman

Fighting for gender equity in the law firm can seem like the very definition of a thankless task. But you just might find yourself able to make great strides.

Gender Equity in the Workplace

Trending Articles

The 2024 Best Lawyers in Spain™

by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky

Best Lawyers Expands Chilean 2024 Awards

by Best Lawyers

Best Lawyers is pleased to announce the 14th edition of The Best Lawyers in Chile™ and the inaugural edition of Best Lawyers: Ones to Watch in Chile™, honoring the top lawyers and firms conferred on by their Chilean peers.

Landscape of city in Chile

The Best Lawyers in Spain™ 2023

by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing The Best Lawyers in South Africa™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Portugal™ 2024

by Best Lawyers

The 2024 awards for Portugal include the 14th edition of The Best Lawyers in Portugal™ and 2nd edition of Best Lawyers: Ones to Watch in Portugal™.

City and beach with green water and blue sky

The Best Lawyers in Peru™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 10th edition of The Best Lawyers in Peru, the prestigious award recognizing the country's lop legal talent.

Landscape of Peru city with cliffside and ocean

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The Best Lawyers in Chile™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

The Best Lawyers in Colombia™ 2024

by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Colombia™ for 2024, which honors Colombia's most esteemed lawyers and law firms.

Cityscape of Colombia with blue cloudy sky above

Announcing the 2024 Best Lawyers in Puerto Rico™

by Best Lawyers

Best Lawyers is proud to announce the 11th edition of The Best Lawyers in Puerto Rico™, honoring the top lawyers and firms across the country for 2024.

View of Puerto Rico city from the ocean

The 2023 Best Lawyers in Portugal™

by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Unwrapping Shrinkflation

by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots