Without Disclosure, We Don’t Know What Conflicts of Interest Our Judges Might Have

A sitting West Virginia judge, Beth Walker, overturned an important ruling to the benefit of companies her husband owned stock in. Now, her conflict of interest is the center of a case that may be heard by the US Supreme Court. While the Supreme Court decides whether this should have been grounds for her recusal, West Virginians should reflect on another, larger and invisible web of potential conflicts of interest surrounding many West Virginia judges — millions of dollars in secret independent campaign expenditures.

These big-money groups have names like, “Moving West Virginia Forward” and “West Virginians for Fair Courts” that hide who the wealthy special interests that fund them are, and what they want from the judges they support or oppose. Recently, there has been an explosion of secret money in West Virginia and state judicial races across the country. A Brennan Center analysis found that 70% of the spending on TV ads in state judicial races ahead of the 2016 election was from dark money sources. Last year, wealthy special interests groups pulled off another victory in a West Virginia Supreme Court race. Largely anonymous groups spent more than $2 million supporting Beth Walker’s candidacy, duplicating the feat Don Blankenship pulled off 12 years ago.

In the past, West Virginia has been a leader in supporting a fair-minded judiciary. After a particularly egregious instance of secret money influencing the court, our state legislature enacted a landmark judicial public financing system to ensure our judges rule on the constitution and law, not based on special interest influence. They also passed a groundbreaking bill limiting contributions to independent groups and requiring the groups to disclose the identity of their controlling entities and donors. However, in recent years, new US Supreme Court rulings like Citizens United and the growth in new types of dark money spending mean that these disclosure laws are not keeping up with the times. Our campaign finance disclosure laws must be revised.

In Justice Walker’s case, whatever the outcome, all parties recognize that stock ownership is a legitimate conflict of interest concern for a judge to rule fairly on a case. With this in mind, West Virginia, every other state, and federal courts address this concern through common-sense financial disclosure forms. Judges have to be transparent about the companies they invest in so that everyone knows that all rulings are fair, impartial, and free from bias.

But why should this stop at investments? Millions of dollars are being spent to elect our judges in total secrecy from the people of West Virginia. West Virginian voters deserve to know who is trying to influence their votes and their judges. While some will claim these expenditures are independent and that there are laws against coordination, this barrier is not always effective or respected. In February, for example, a Wisconsin Supreme Court justice uploaded b-roll footage of herself onto YouTube, which was then used in television ads by an outside group. Even if these groups are independent, as they claim, there is no compelling interest that these donations made in secret should not be exposed to the sunlight of transparency.

Without common-sense disclosure laws, anyone could end up across the courtroom from another other party who has given hundreds of thousands of dollars to a dark money group supporting the judge ruling on their case. And they wouldn’t even have the information, to ask the judge to recuse himself or herself. The faith of West Virginians’ in their courts is rightfully tarnished by such secrecy, but the solution is simple. As dark money tries to find new and hidden ways into influencing our elections, it is critical that our state legislators protect the fairness, impartiality, and public trust in the judiciary through strong, up-to-date disclosure laws.

Julie Archer is Project Manger at WV Citizen Action Education Fund and Co-Coordinator of WV Citizens for Clean Elections, a statewide coalition working to increase transparency and accountability in West Virginia elections. This column was published in the State Journal, October 9, 2017.