Sec. 202. Reporting of Federal judicial nomination disbursements
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Congress makes the following findings: A fair and impartial judiciary is critical for our democracy and crucial to maintain the faith of the people of the United States in the justice system. As the Supreme Court held in Caperton v. Massey , there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case. ( Caperton v.
A. T. Massey Coal Co ., 556 U.S. 868, 884 (2009)). Public trust in government is at a historic low. According to polling, most Americans believe that corporations have too much power and influence in politics and the courts. The prevalence and pervasiveness of dark money drives public concern about corruption in politics and the courts. Dark money is funding for organizations and political activities that cannot be traced to actual donors. It is made possible by loopholes in our tax laws and regulations, weak oversight by the Internal Revenue Service, and donor-friendly court decisions.
Under current law, social welfare organizations and business leagues can use funds to influence elections so long as political activity is not their primary activity. Super PACs can accept and spend unlimited contributions from any non-foreign source. These groups can spend tens of millions of dollars on political activities. Such dark money groups spent an estimated $1,050,000,000 in the 2020 election cycle. Dark money is used to shape judicial decision-making. This can take many forms, akin to agency capture: influencing judicial selection by controlling who gets nominated and funding candidate advertisements; creating public relations campaigns aimed at mobilizing the judiciary around particular issues; and drafting law review articles, amicus briefs, and other products which tell judges how to decide a given case and provide ready-made arguments for willing judges to adopt.
Over the past decade, nonprofit organizations that do not disclose their donors have spent hundreds of millions of dollars to influence the nomination and confirmation process for Federal judges. One organization alone has spent nearly $40,000,000 on advertisements supporting or opposing Supreme Court nominees since 2016. Anonymous money spent on judicial nominations is not subject to any disclosure requirements. Federal election laws only regulate contributions and expenditures relating to electoral politics; thus, expenditures, contributions, and advocacy efforts for Federal judgeships are not covered under the Federal Election Campaign Act of 1971.
Without more disclosure, the public has no way of knowing whether the people spending money supporting or opposing judicial nominations have business before the courts. Congress and the American people have a compelling interest in knowing who is funding these campaigns to select and confirm judges to lifetime appointments on the Federal bench. Section 324 of the Federal Election Campaign Act of 1971 ( 52 U.S.C. 30126 ), as amended by section 201, is amended by redesignating subsection
(g)as subsection
(h)and by inserting after subsection
(f)the following new subsection: For purposes of this section— a disbursement by a covered organization for a Federal judicial nomination communication shall be treated as a campaign-related disbursement; and in the case of campaign-related disbursements which are for Federal judicial nomination communications— the dollar amounts in paragraphs
(1)and
(2)of subsection
(a)shall be applied separately with respect to such disbursements and other campaign-related disbursements; the election reporting cycle shall be the calendar year in which the disbursement for the Federal judicial nomination communication is made; references to a candidate in subsections (a)(2)(C), (a)(2)(D), and (a)(3)(C) shall be treated as references to a nominee for a Federal judge or justice; the reference to an election in subsection (a)(2)(C) shall be treated as a reference to the nomination of such nominee. The term Federal judicial nomination communication means any communication— that is by means of any broadcast, cable, or satellite, paid internet, or paid digital communication, paid promotion, newspaper, magazine, outdoor advertising facility, mass mailing, telephone bank, telephone messaging effort of more than 500 substantially similar calls or electronic messages within a 30-day period, or any other form of general public political advertising; and which promotes, supports, attacks, or opposes the nomination or Senate confirmation of an individual as a Federal judge or justice. Such term shall not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station or any print, online, or digital newspaper, magazine, publication, or periodical, unless such facilities are owned or controlled by any political party, political committee, or candidate. A disbursement for an item described in subparagraph
(A)shall be treated as a disbursement for a Federal judicial nomination communication regardless of the intent of the person making the disbursement. .
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- 556 U.S. 868
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