July 02, 2020

Feinstein, Whitehouse Introduce Bill to Combat Dark Money in Judicial Nominations

Washington—Senators Dianne Feinstein (D-Calif.) and Sheldon Whitehouse (D-R.I.) today introduced the Judicial Ads Act to combat the rise of anonymous political donations – known as dark money – in judicial nominations.

The identity of donors who fund advocacy efforts for judicial nominees, unlike donors who do the same for political candidates, are not required to be disclosed. As a result, 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.

“The rise of dark-money campaigns threatens the independence of our judiciary,” Senator Feinstein said. “The American people have a right to know who is trying to influence judicial nominations. Our bill would help shine light on the process, requiring major donors to these campaigns to be identified and removing the serious potential for undisclosed conflicts of interests.”

“A decades-long effort by big corporations and partisan donors to rig the courts using dark money is working; they’ve won over 80 partisan, 5-4 decisions,” said Senator Whitehouse. “Part of this scheme is sophisticated, political campaign-style advertising by dark-money groups, which we saw used to defeat Garland and confirm Gorsuch and Kavanaugh. Two $17+ million anonymous donations funded much of that. We deserve to know who that was and what business they have at the court. The Judicial Ads Act will give Americans this transparency and accountability.”

In the absence of disclosure requirements, individuals and entities are currently free to spend millions to help confirm judges without the public learning about their investments. For instance, the Washington Post reported that Federalist Society leadership raised more than $250 million from 2014 to 2017, some of which was used to fund advertisements in support of or against judicial nominees.

 Another interest group – the Judicial Crisis Network – received two separate anonymous $17 million donations and another $38 million from an anonymous LLC between 2016 and 2018. It spent at least $17 million on advertisements opposing Judge Merrick Garland and supporting Justice Neil Gorsuch, and at least $12 million on advertisements in support of Justice Brett Kavanaugh.

The Judicial Ads Act would:

  • Require groups that spend more than $50,000 in a calendar year on advertisements related to federal judicial nominations to disclose donors who have given more than $5,000 to the group during that year and the preceding year.

  • Require groups to disclose information about each advertisement related to a judicial nomination including the name of the nominee the advertisement is about.

  • Require advertisements related to a judicial nomination to contain disclaimers – just like campaign ads – making clear the identity of the group funding the advertisement.

  • Ban foreign nationals from funding advertisements related to a judicial nomination.

            In addition to Senators Feinstein and Whitehouse, the bill is cosponsored by Senators Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), Chris Coons (D-Del.), Richard Blumenthal (D-Conn.), Mazie K. Hirono (D-Hawaii), Bob Menendez (D-N.J.), Jeff Merkley (D-Ore.), Kirsten Gillibrand (D-N.Y.), Angus King (I-Maine), Edward J. Markey (D-Mass.) and Chris Van Hollen (D-Md.).

The bill is supported by the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, the Project on Government Oversight, Public Citizen, Democracy 21 and End Citizens United // Let America Vote Action Fund

“The Judicial Ads Act would serve only to facilitate the fully informed and properly accountable use of the process created by the Constitution for populating the federal judiciary,” said Professor Larry Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. “To me the case for disclosure is even stronger here than in the context of campaigns for political office, given the importance of the judicial nomination process’s public legitimacy, as compared to the rough and tumble of a political race.”

“Transparency means more accountability,” said Trevor Potter, president of the Campaign Legal Center. “This principle holds true for political campaigns, and it should be no different when it comes to the confirmation of federal judges. Wealthy special interests – of all political stripes – secretly spend millions of dollars on ads in support of judicial nominees they believe will advance their causes in the courtroom, and the public has no idea who is behind these ads. This secret spending means that justices and judges may have hidden conflicts of interest. The Judicial Ads Act will finally bring transparency to our third branch of government.”

 “Massive spending by special interest groups on judicial nominations and the resulting conflicts of interest undermine the principle of a transparent government and leave voters in the dark about who is bankrolling these nominations. Requiring the disclosure of who is financing advocacy for or against judicial nominees is crucial to maintaining the public’s trust in the integrity and independence of our legal system,” said Jennifer Ahearn, policy director for Citizens for Responsibility and Ethics in Washington. “The Judicial Ads Act moves us closer toward ensuring that our judicial system remains free from partisan politics.”

“There can be little doubt that judicial confirmations have become a big business, drawing huge amounts of spending and advocacy by outside groups. We can no longer ignore this reality and the impact it has on the actual and perceived independence of the courts,” said Sarah Turberville, director of the Constitution Project at the Project On Government Oversight. “Those outside groups spending all of this money must be held to the same standards of accountability and transparency as similar kinds of campaign activity in the context of elections. The Judicial Ads Act would go a long way toward doing just that and Senators Feinstein and Whitehouse should be commended for leading the way on this important legislation.”

“Like our elections, dark money groups are spending millions of dollars to confirm federal judges without any transparency or accountability and that undermines the public's faith in the integrity and independence of the judiciary,” said Tiffany Muller, president of End Citizens United // Let America Vote Action Fund. “We fully endorse the Judicial Ads Act that would add much-needed sunlight to the judicial nomination process and we applaud Senators Dianne Feinstein and Sheldon Whitehouse for their leadership on this critical issue for our democracy.”

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