Sen. Jeremy Hutchinson, who chairs the Senate Judiciary Committee, confirms that a meeting is tentatively scheduled March 31 to address two hot topics — requiring disclosure of judicial campaign spending and appointing rather than electing appellate judges, particularly members of the Arkansas Supreme Court.
The topic is suddenly hot after big spending in two races for Arkansas Supreme Court in money from unidentified sources bought hundreds of thousands of dollars in ads in support of the two winning candidates, Dan Kemp for chief justice and Shawn Womack for associate justice. Gov. Asa Hutchinson has indicated his interest in moving from election to appointment of appellate judges and there’s increased talk in emulating other states in passage of legislation that would require disclosure of sources of money spent to influence judicial elections.
The move to appointment of judges could come as soon as an election in November. Normally, the legislature may put three substantive constitutional amendments on a general election ballot every two years. But there’s an exception in Amendment 80, which restructured Arkansas courts:
(A) Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office. Provided, however, the General Assembly may refer the issue of merit selection of members of the Supreme Court and the Court of Appeals to a vote of the people at any general election. If the voters approve a merit selection system, the General Assembly shall enact laws to create a judicial nominating commission for the purpose of nominating candidates for merit selection to the Supreme Court and Court of Appeals
Jeremy Hutchinson, the governor’s nephew, says research is underway and that the governor’s staff is among those in on the discussions. The word of this has made some — even those in favor of an appointed system — nervous. Would voters vote on the actual appointment system, or merely be asked to turn that task over the legislature.
For his part, Hutchinson said he envisions putting the precise appointment system on the ballot because he doesn’t trust the task to the legislature or groups that might try to influence it. But that’s only Hutchinson’s opinion at this point.
What would he favor? As it stands, a system unlike anything anywhere else. There’d be no committee to make recommendations from which the governor could choose a nominee. He’d simply have the governor make the choice, subject to legislative confirmation. It would be for a single 12-year term — “long enough,” he said. He said it might have to include a double-counting of service to provide pensions commensurate with those given. He said this would track the federal system, which he said generally works “reasonably well.” (Except, as currently, when it doesn’t and a Republican Senate refuses to consider a presidential nomination.) He said he doesn’t support “retention elections,” which some states use to allow voters to pass on the performance of appointed judges. This just brings money and the electoral proces back to the fore, he said.
He said the committee discussion could change his outlook and that of others. The discussion also will include whether to try it this year or wait. He said “a lot of momentum” exists for making the change. But he reiterated a ballot proposal “would have to spell out exactly what the plan is.” Groups like the Arkansas State Chamber of Commerce and lobbyists would naturally favor a system that put them in a position to control court appointments.
Which brings us to money. Hutchinson said momentum also was growing to at least require reporting of sources of money spent on judicial elections, if not all elections. He noted that court precedent supported disclosure of spending on judicial elections.
He said there was also talk of a “presumptive recusal” provision. For example, a judge would have to recuse if they received $5,000 from a contributor to a campaign who became a party to a court action.
Supreme Court Justice Karen Baker is expected to testify with some ideas on changes in judicial campaign financing, though not on the method of selection, Hutchinson said. Baker is one of the judges who had significant financial help from nursing homes and class action lawyers.
UPDATE: Rep. Clarke Tucker said he’ll be presenting his proposal on requiring disclosure of what’s now called dark money. He said he expected opposition and that there could be variations of both spending and election ideas. For example, on spending, he’s heard there could be a public finance idea for judicial races, but an exception allowed for candidates to raise money independently if outside dark money was spent first. It’s worth noting, he said, that the U.S. Supreme Court has left open not only requiring disclosure of outside spending but restricting that spending in judicial races, though the Citizens United decision seems to foreclose such restrictions on other elected offices. “I think that needs to be part of the conversation,” he said.