A surprising opinion this week from the Kansas Governmental Ethics Commission demands the prompt attention of state legislators.
On Wednesday, the commission issued its opinion that none of the state’s campaign finance regulations apply to retention elections for members of the Kansas Supreme Court or the Kansas Court of Appeals. That means that anyone can spend any amount of money in an effort to influence the retention votes without having to provide any information about who is funding that effort and in what amount.
This issue came to light in connection with an effort launched last month by Kansans for Life to oust at least one Supreme Court justice because of her handling of abortion cases in the state. After some questions were raised, the specific target of the effort, Justice Carol Beier, posed a simple question to the Ethics Commission: “Is a retention election for the position of Justice of the Kansas Supreme Court governed by the Kansas Campaign Finance Act.”
The answer, according to Carol Williams, executive director of the Ethics Commission, is “no.”
The Campaign Finance Act, which outlines all of the state’s restrictions on campaign donations and reporting uses the definition of “state officers” that’s contained in state election statutes. Those statutes list all of the elected state officials, including district and magistrate judges, which are elected in many Kansas counties. However, it does not list members of the Supreme Court or Court of Appeals, who must stand for retention every four years but are never actually elected. Therefore, the state’s top judges aren’t covered.
The door opened by this statutory gap is enormous. Unlimited amounts of money from local, state or national groups or individuals can be poured into an effort to discredit members of the Supreme Court or Court of Appeals. By the same token, someone wanting to curry favor by financing positive publicity about one of the judges could do the same. And none of them, on either side, would ever have to reveal their identity or how much money they contributed to the effort. There would be no way for voters to assess the validity of or the motivation behind the information.
This is a huge problem but it has a relatively easy fix: adding members of the two high courts to the election statute’s list of state officers. It’s too late in the session to run legislation making that change through the normal process, but there are ways for legislators to bypass that process when they see an urgent need. With a heated battle looming for November 2010 retention elections, lawmakers need to give this matter their urgent attention and make the necessary change to curb what could be a very ugly chapter in Kansas election history.