Editorial: Judicial Campaign Money, Disqualification, and the Status Quo Bias
Posted by judicialethicsforum on Sunday, August, 4, 2013
Before the ABA’s House of Delegates in a few days will be Resolution 108, which proposes to amend the Model Code of Judicial Conduct to address judicial campaign contributions and independent expenditures. When elective judges receive campaign contributions or benefit (or suffer) from independent expenditures, those judges must consider various factors to determine whether to recuse themselves from cases involving those spenders. Resolution 108, which is supported by the ABA’s Standing Committees on Ethics and Professional Discipline and the Association of Professional Responsibility Lawyers (among others), competently and fairly comprehensively addresses these considerations.
To be sure, 108 is not perfect. For example, it arguably concedes too much to commentators by inserting two, money-in-politics concessions in the official comments: (1) “no inference about a judge’s actual knowledge should be drawn solely from the fact that reports of campaign contributions or independent expenditures have been filed by individuals or organizations as required by law and may be available as public records or in the public domain” [yet, as the Model and most state Codes acknowledge, actual knowledge can be inferred from the circumstances]; and (2) “The fact that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a contribution to a judge’s election or retention election campaign in an amount up to the limit allowed by law should not, of itself, be a basis for the judge’s disqualification” [which of course does nothing to address high-contribution-limit jurisdictions, among other issues]. Resolution 108 is not perfect primarily because the ABA’s Judicial Division has, to editorialize, insisted that watered-down provisions prevail. And even when such watered-down-but-still-better-than-the-status-quo provisions prevailed in 108’s final version, the Judicial Division not only refused to sign onto 108 but issued a call to resist change and drafted its competing Resolution 10-B. 10-B simply asks states to review their own disqualification procedures individually.
10-B seems simply a roadblock to change, and to see it, note that Resolution 107 (which did essentially everything that 10-B purports to do) was passed in 2011, Caperton was decided in 2009, the ABA Judicial Disqualification Project began in 2007, and judicial campaign spending has increased significantly throughout this period (and will likely continue to increase in the future). In light of all of that time and all of those developments (to name just a few), the Judicial Division could create nothing better than a request that each individual state review its disqualification procedures? Or perhaps the Judicial Division no longer supports the concept of Model Codes?
In sum, Vote for 108 — except that you cannot. Owing to the resistance from the Judicial Division, the Committees on Ethics and Professional Discipline just agreed to withdraw Resolution 108 (contingent on the withdrawal of 10-B). Thank you to the Committees for your efforts to date, but money and power are not easily defeated. “I am not concerned that you have fallen; I am concerned that you arise.” — Lincoln.