Diving in to the Judiciary's Financial Disclosure Failures
Following ProPublica’s story today on how the Judicial Conference, its Committees and judiciary staff have acted as defenders of judges’ and justices’ ethical lapses, we’re adding some color to their report in four areas — investigations, staffing, compliance and travel rules — some of which is based on FTC’s exclusive research.
1. Investigations
ProPublica story:
“ProPublica found [that] two successive Financial Disclosure Committee chairs decided behind closed doors to end the [2011-12 Justice Thomas disclosures] inquiry at the outset and chose not to seek any evidence before the committee announced that it hadn’t seen any to support the allegations.”
Additional context from FTC:
It may not just be two CFD chairs who’ve done nothing in response to Justice Thomas’ disclosure omissions; it could be four, as there’s no indication that W. Ky. Judge David Bunning (CFD chair Oct. 1, 2020 – Sept. 30, 2023) or W.D. Mo. Chief Judge Beth Phillips (chair since Oct. 1) has acted on the April 21 referral of the more recently uncovered Thomas lapses.
The only public action to date has been an (unnecessary) recusal from the referral by a CFD judge who happened to write a law review article about Justice Thomas 20 years ago. What’s more, the terms of the half of the CFD judges were scheduled to end this fall, and it’s unclear how many have been reappointed and who any new appointees might be.
FTC has on multiple occasions this year attempted to clarify from CFD judges and Administrative Office staff if anything is happening on the Thomas front. Those inquiries have either been met with silence or with a brief note saying there would be no comment.
2. Staffing
ProPublica story:
“Staffers without law degrees have routinely given ad hoc legal guidance to judges about their financial disclosures because of staffing shortages, one former Administrative Office official told ProPublica.”
Additional context from FTC:
Some of the staffing shortage, we believe, can be attributed to a 2001 regulation that permits filers to receive sizable reimbursements for payments made to CPAs or financial advisers for help in filing disclosures. That’s incentivized a revolving door where former FDO staff go to work at disclosure preparation firms that receive these reimbursements, now up to $1,685 per filer as of this fall. Though we don’t know how many filers are using these services, there are more than 4,500 required judiciary filers, split close to evenly between judges and judicial employees, who can take advantage of the reimbursement. What’s worse, one firm is giving filing advice that flouts both the text and the intention of the Ethics in Government Act (item no. 2).
3. Compliance
ProPublica story:
“[T]he Financial Disclosure Committee is responsible for enforcing Watergate-era transparency laws and handling the rare allegation that a judge may have knowingly filed a false disclosure report.”
Additional context from Fix the Court:
One of the disciplinary tools in the Ethics in Government Act is that the Judicial Conference, following a Financial Disclosure Committee investigation, may fine a late filer, whether a judge or a justice, $200. And the attorney general may bring a civil action against a filer who “knowingly and willfully falsifies” their disclosure, which could result in up to a $50,000 penalty. In August, FTC asked the AO if anyone had ever been fined under the law. After all, according to the Judicial Conference’s March 2023 report, 65 individuals (unknown what percentage was judges vs. staff) had yet to file their 2021 disclosures. Surely someone had been penalized.
The response FTC received was disappointing: FDO staff could not look into the question because it was too busy uploading disclosures into the new database required by the Courthouse Ethics and Transparency Act. That was a bit ironic seeing as how far behind the judiciary remains in complying with CETA, as more than 150 judicial disclosures from 2021 (due May 16, 2022) and close to 1,000 2022s (due May 15, 2023) were not uploaded last we checked two weeks ago.
FTC’s long-held belief that no judge or justice has ever been fined under the EIGA remains.
4. Travel rules
ProPublica story:
“In the aftermath [of late-1990s and mid-2000s reports on judges’ junkets], the Judicial Conference made some concessions on travel rules, including a requirement for seminars to report their funders before judges can attend and better public access to financial disclosures.”
Additional context from Fix the Court:
These rules, implemented in 2006, require judges to report their participation in privately funded seminars 30 days after they return from one. Guess what: compliance is lacking.** FTC noted this in a letter to the AO Director in August, and in the last few weeks we’ve identified several more missing reports.
Several are now posted thanks to our efforts: D.C. Circuit Judge Michelle Childs (6 previously missing seminar reports), First Circuit Judge David Barron (1), Third Circuit Judge Stephanos Bibas (1), Ninth Circuit Judge Gabriel Sanchez (3) and Eleventh Circuit Judges Lisa Branch (1) and Britt Grant (1). Seminar reports from Fifth Circuit Judge Kyle Duncan (as many as a dozen), Eleventh Circuit Chief Judge Bill Pryor (1) and S.D. Fla. Judge Aileen Cannon (2), among others, remain missing. FTC will continue seeking compliance.
“The judiciary’s financial disclosure protocols need greater scrutiny,” FTC’s Gabe Roth concluded. “Compliance is underwhelming, and there are no consequences for violations. Here we have yet another context in which judges judging other judges isn’t working.”
**Reports are available by going to complex URLs: https://psds.uscourts.