President's Page

Reining in Outside Influence on Judicial Campaigns

By Ole Bly Pace III

Beginning this campaign season, the ISBA monitors the tone and conduct of judicial campaigns and speaks out against third-party attacks on the integrity of the judicial system.

As I write this in late August, the election season is upon us. Your ISBA is normally not involved in elections, other than to inform voters about judicial candidates through our polling and evaluation procedures.

Times have changed. This year, we are actively involved, not on behalf of a particular candidate, but to help protect the integrity and independence of our courts. This effort highlights serious challenges we face and reminds us of old truths.

One challenge arises because interest groups are now spending large sums and using attacks on our judicial system and candidates to influence voters in judicial elections. The interest groups' purpose is to further their particular agendas. (By electing judges, we probably make that inevitable.)

Two years ago, Ohio's Supreme Court race became a poster child for this type of campaign. Third-party groups ran advertisements, both electronic and print, that claimed the "other" candidate was in the pocket of bad special interests. The basic message was that the citizens could not get justice if that candidate was elected, because the candidate was owned by the special interest group. Attack was met with counterattack.

When the election was over, the interest groups went on to another state, but the aggressive advertising campaigns left the citizens of Ohio with the image of an unfair and biased judiciary. Loss of trust and faith in our judicial system is not consistent with ordered liberty.

Here, the race for supreme court justice in Illinois' fifth appellate district has drawn the media spotlight. Two honorable members of the judiciary (both ISBA members) are running for the seat. Attacks on the judicial system began in the spring. News accounts report that large sums were poured into both sides of the race. While we voice confidence in judicial integrity, the practical necessity for the campaign organizations to raise large sums of money gives rise to public perceptions of corrupt influence.

The experience in states like Ohio was cause for alarm. Because of First Amendment restraints, Illinois Supreme Court Rule 67 (the Rule that governs judicial election conduct) cannot be used to limit attacks by third parties not under the control of the judicial candidate.

The Illinois Campaign for Political Reform came to the Board of Governors in May and asked that the ISBA help protect the independence and integrity of our courts. At its next meeting, the Board established the ISBA Standing Committee on Supreme and Appellate Court Elections Campaign Tone and Conduct. The committee's responsibility is to monitor the conduct of campaigns for our supreme and appellate courts and to help the ISBA speak out forcefully if a campaign communication either by a candidate or a third party attacks the independence or integrity of the judicial system.

The committee procedures call for each supreme court candidate to sign a pledge to comply with Rule 67 (each candidate did, by the way) and to protect the integrity and independence of the courts, to speak out when silence is misleading, and to respond to the committee. If the committee decides that a campaign communication attacks the integrity or independence of the judicial system, it asks the candidates to publicly disavow the advertisement. The committee may also issue a press release. If a candidate refuses, the committee will do what it can to respond to the attack and the failure to disavow it.

The committee was announced at a press conference attended by both candidates in Collinsville. The committee obviously aids the system by helping the candidates to demonstrate that they are independent and have integrity despite campaign donations or third-party advertisements. ISBA Assistant Executive Director David Anderson capably lined up meetings with editorial boards so we could explain what we were doing and why. The meetings, which were cordial, were held to emphasize the importance of an independent judiciary and to urge the press to make note when a candidate publicly disavows an ad.

Our meetings with the editorial boards revealed other challenges we face. I was asked to justify donations by lawyers to judicial campaigns. My explanation (after pointing to the limitations on a judicial candidate's personal involvement in fund raising) was that our judiciary truly has integrity, and if the judge feels she or he cannot be fair, she or he says so. I also pointed out that our Constitution requires that most judges be elected, and that lawyers give money because they want good judges, not because they hope to buy influence.

I was always asked how voters can be expected to make an informed choice when judicial candidates are so limited in what they can say. I was always asked whether merit selection would be a better way. My answer was that the ISBA has long supported merit selection.

One of the publishers asked us whether ISBA efforts would accomplish anything, because disavowal announcements and press releases could be overwhelmed by advertising. My response was that I wasn't sure but that we have to try, and that it was important that the media care. Otherwise, we both risk allowing interest groups to undermine the public's trust in the one branch of government they should count on for justice.

Until there's a better system, I hope we all keep trying.